Migration Regulations 1994

Division 4.1—Review of decisions other than decisions relating to protection visas

Note: This Division of Part 4 deals with review of visa decisions. It refers to the definition of MRT‑reviewable decision in Division 2 of Part 5 of the Act.

Review of decisions relating to protection visas is dealt with in Division 4.2.

4.01 Interpretation

Expressions used in this Part, other than nominated and sponsored, have the same respective meanings as in Part 5 of the Act.

4.02 Prescribed MRT‑reviewable decisions and who may apply for review (Act, ss 338 and 347)

(1AA) For section 337 of the Act, sponsored includes being identified in a nomination under section 140GB of the Act.

(1A) For paragraph 338(2)(d) of the Act, the following visas are prescribed:

(a) a Subclass 401 (Temporary Work (Long Stay Activity)) visa;

(aa) a Subclass 402 (Training and Research) visa;

(ab) a Subclass 411 (Exchange) visa;

(b) a Subclass 415 (Foreign Government Agency) visa;

(d) a Subclass 419 (Visiting Academic) visa;

(e) a Subclass 420 (Entertainment) visa;

(f) a Subclass 421 (Sport) visa;

(g) a Subclass 423 (Media and Film Staff) visa;

(h) a Subclass 427 (Domestic Worker (Temporary)—Executive) visa;

(i) a Subclass 428 (Religious Worker) visa;

(j) a Subclass 442 (Occupational Trainee) visa;

(k) a Subclass 457 (Temporary Work (Skilled)) visa;

(l) a Subclass 488 (Superyacht Crew) visa.

(4) For subsection 338(9) of the Act, each of the following decisions is an MRT‑reviewable decision:

(a) a decision under subsection 140E(1) of the Act to refuse a person’s application for approval as a sponsor in relation to one or more classes of sponsor;

(d) a decision under subsection 140GB(2) of the Act to refuse to approve a nomination;

(e) a decision under regulation 5.19 to refuse an application for approval of the nomination of a position;

(f) a decision that:

(i) relates to requiring a security; and

(ii) relates to the refusal to grant a visa, being a visa for which the Minister is to have regard to a criterion to the effect that if an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged;

(h) a decision under section 140M of the Act to take 1 or more actions to cancel a sponsor’s approval or to bar a sponsor;

(j) a decision to refuse to grant a Subclass 173 (Contributory Parent (Temporary)) visa to a contributory parent newborn child;

(k) a decision to refuse to grant a Subclass 884 (Contributory Aged Parent (Temporary)) visa to a contributory parent newborn child;

(l) a decision to refuse to grant a Subclass 457 (Temporary Work (Skilled)) visa to a non‑citizen if:

(i) the non‑citizen is outside Australia at the time of application; and

(ii) the non‑citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by:

(A) an Australian citizen; or

(B) a company that operates in the migration zone; or

(D) the holder of a permanent visa; or

(E) a New Zealand citizen who holds a special category visa;

(la) a decision to refuse to grant a Subclass 489 (Skilled—Regional (Provisional)) visa to a non‑citizen if:

(i) the non‑citizen is outside Australia at the time of application; and

(ii) the non‑citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by:

(A) an Australian citizen; or

(B) a company that operates in the migration zone; or

(D) the holder of a permanent visa; or

(E) a New Zealand citizen who holds a special category visa;

(m) a decision under subregulation 1.20AA(2) to refuse to approve a person or an organisation as a sponsor of a temporary visa applicant;

(n) a decision under subsection 140GA(2) of the Act not to vary a term specified in an approval.

(4A) For paragraph (4)(a), the decision is not an MRT‑reviewable decision if the decision relates to a person:

(a) whose application for approval as an approved sponsor in relation to the standard business sponsor class has been refused; and

(b) in making the decision, the Minister did not consider the criteria at paragraphs 2.59(d) and (e).

Note: The Minister is required to consider the criteria at paragraphs 2.59(d) and (e) only if the applicant is lawfully operating a business in Australia.

(4B) For paragraphs (4)(d) and (h), the decision is not an MRT‑reviewable decision:

(a) if the decision relates to a person who is:

(i) a standard business sponsor; or

(ii) a former standard business sponsor; and

(b) either:

(i) in making the decision under subsection 140E(1) of the Act (whether to approve the person as a standard business sponsor), the Minister did not consider the criteria at paragraphs 2.59(d) and (e); or

(ii) in making the decision under subsection 140GA(2) of the Act (whether to vary the terms of approval), the Minister did not consider the criteria at paragraphs 2.68(e) and (f).

Note: The Minister is required to consider the criteria at paragraphs 2.59(d) and (e) or paragraphs 2.68(e) and (f) only if the applicant is lawfully operating a business in Australia.

(4C) For paragraph (4)(n), the decision is not an MRT‑reviewable decision if:

(a) the decision relates to a person who is:

(i) a standard business sponsor; or

(ii) a former standard business sponsor; and

(b) in making the decision under subsection 140GA(2) of the Act (whether to vary the terms of approval), the Minister did not consider the criteria at paragraphs 2.68(e) and (f).

Note: The Minister is required to consider the criteria at paragraphs 2.68(e) and (f) only if the applicant is lawfully operating a business in Australia.

(5) For paragraph 347(2)(d) of the Act, an application for review of a decision mentioned in subregulation (4) may only be made by:

(a) in the case of a decision mentioned in paragraph (4)(a)—a person to whose application the decision relates;

(d) in the case of a decision mentioned in paragraph (4)(e)—the employer to whose nomination of a position the decision relates;

(e) in the case of a decision to which paragraph (4)(f) applies—the non‑citizen in relation to whom the decision is made;

(g) in the case of a decision mentioned in paragraph (4)(h)—the person whose approval is cancelled or who has been barred;

(h) in the case of a decision to which paragraph (4)(j) applies—the sponsor of the contributory parent newborn child;

(i) in the case of a decision to which paragraph (4)(k) applies—the applicant;

(k) in the case of a decision to which paragraph (4)(l) relates—the sponsor or nominator;

(ka) in the case of a decision to which paragraph (4)(la) relates—the sponsor or nominator;

(l) in the case of a decision to which paragraph (4)(m) applies—the person or organisation to whose approval the decision relates;

(m) in the case of a decision to which paragraph (4)(n) applies—the approved sponsor who applied for a variation of the term.

4.10 Time for lodgment of applications with Tribunal (Act, s 347)

(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT‑reviewable decision must be given to the Tribunal:

(a) if the MRT‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or

(b) if the MRT‑reviewable decision is mentioned in subsection 338 (3) r (3A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received; or

(c) if the MRT‑reviewable decision is mentioned in subsection 338(5), (6), (7) or (8) of the Act—starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received; or

(d) if the MRT‑reviewable decision is prescribed under subsection 338(9) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.

(2) However, the period in which an application by a detainee for review of an MRT‑reviewable decision must be given to the Tribunal:

(a) in the case of an application for review of a decision of a kind mentioned in subsection 338(4) of the Act—starts when the detainee receives notice of the decision and ends at the end of 2 working days after the day on which the notice is received; or

(aa) in the case of an application for review of a decision to which paragraph 4.02(4)(f) applies—starts when the detainee receives notice of the decision to refuse to grant the visa mentioned in subparagraph 4.02(4)(f)(ii) and ends at the end of 2 working days after the day on which the notice is received; or

(b) in any other case—starts when the detainee receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received.

(2A) For subparagraph 347(1)(b)(iii) of the Act, the prescribed number of days in respect of an MRT‑reviewable decision prescribed under subsection 338(9) of the Act is 28 days.

Note: For subparagraph 347(1)(b)(iii) of the Act, there must be a prescribed number of days in respect of kinds of decisions covered by subsection 338(9) of the Act. The prescribed period for applications for review must end not later than the prescribed number of days after notification of the decision.

4.11 Giving the application to the Tribunal

(1) An application for review by the Tribunal must be given to the Tribunal by:

(a) leaving it with an officer of the Tribunal at a registry of the Tribunal, or with a person specified in a direction given by the Principal Member under section 353A of the Act; or

(b) sending the application by pre‑paid post to a registry of the Tribunal; or

(c) having the application delivered by post, or by hand, to an address specified in a direction given by the Principal Member under section 353A of the Act; or

(d) faxing the application to a fax number specified in a direction given by the Principal Member under section 353A of the Act; or

(e) transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the Principal Member under section 353A of the Act.

(2) An application made to the Tribunal in accordance with paragraph (1)(a) or (b) is taken to have been received by the Tribunal at the time the Tribunal receives it.

(3) An application made to the Tribunal in accordance with paragraph (1)(c) is taken to have been received by the Tribunal at the time it is received at the relevant address.

(4) An application made to the Tribunal in accordance with paragraph (1)(d) is taken to have been received by the Tribunal at the time it is received at the relevant fax number.

(5) An application made to the Tribunal in accordance with paragraph (1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it.

4.12 Combined applications for Tribunal review

(2) If:

(a) 2 or more applicants have combined their primary applications in Australia in a way permitted by Schedule 1 or regulation 2.08, 2.08A or 2.08B; and

(b) the Minister’s decisions in respect of 2 or more of those applicants are that a visa not be granted; and

the applicants referred to in paragraph (b) may combine their applications for review by the Tribunal of the Minister’s decisions.

(4) If:

(a) a person has nominated or sponsored 2 or more members of a family unit in respect of their primary applications for visas of a kind referred to in subsection 338(5) of the Act; and

(b) the Minister’s decisions in respect of 2 or more of the members of that family unit are that a visa not be granted; and

the nominator or sponsor may combine his or her applications for review by the Tribunal of the Minister’s decisions in respect of each of the members of the family unit to whom the Minister refused to grant a visa.

(5) If a person applies for review by the Tribunal of:

(a) a decision to which paragraph 4.02(4)(f) applies; and

(b) a decision to refuse to grant the visa mentioned in subparagraph 4.02 (4) (f) (ii) that is an MRT‑reviewable decision;

the applications for review by the Tribunal of the decisions are taken to be combined.

(6) If:

(a) 2 or more visa applicants have combined their primary applications, in a way permitted by Schedule 1 or regulation 2.08, 2.08A or 2.08B, for visas of a kind referred to in subsection 338(6) or (7) of the Act; and

(b) the Minister’s decisions in respect of 2 or more of those visa applicants are that visas not be granted; and

the Australian citizen or Australian permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the visa applicants may combine his or her applications for review by the Tribunal of the Minister’s decisions in respect of each of those visa applicants to whom the Minister refused to grant a visa.

4.13 Tribunal review—fees and waiver

(1) Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,540.

Note: The fee in subregulation (1) is subject to increase under regulation 4.13A.

(2) No fee is payable on the following:

(a) an application for review by the Tribunal of a primary decision of a kind referred to in subsection 338(4) of the Act;

(b) an application, made by a non‑citizen who is in immigration detention, for review by the Tribunal of a decision to which paragraph 4.02(4)(f) applies.

(3) If a person combines 2 or more applications for review by the Tribunal in accordance with regulation 4.12, an application fee is payable in respect of only 1 of those applications.

(4) 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 (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% of the amount mentioned in subregulation (1).

4.13A Biennial increases in fees

Despite any other provision of these Regulations, the fee prescribed by subregulation 4.13(1) is increased, in accordance with regulation 4.13B, on each biennial anniversary of 1 July 2011.

4.13B Calculation of increase

(1) If, in a relevant period, the latest CPI number is greater than the earlier CPI number, a fee is taken to increase, on 1 July immediately following the end of the period, in accordance with the formula:

where:

earlier CPI number is the CPI number for the last March quarter before the beginning of the relevant period.

latest CPI number is the CPI number for the last March quarter before the end of the relevant period.

(2) If, apart from this subregulation, the amount of a fee increased under subregulation (1) would be an amount of dollars and cents, the amount is to be rounded to the nearest whole dollar and, if the amount to be rounded is 50 cents, rounded down.

(3) Subject to subregulation (4), if at any time, whether before or after the commencement of this regulation, the Australian Statistician publishes for a particular March quarter a CPI number in substitution for an index number previously published by the Australian Statistician for that quarter, the publication of the later index number is to be disregarded for the purposes of this regulation.

(4) If, at any time, whether before or after the commencement of this regulation, the Australian Statistician changes the reference base for the Consumer Price Index, then, for the purposes of the application of this regulation after the change is made, regard must be had only to numbers published in terms of the new reference base.

(5) In this regulation:

CPI number means the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician.

fee means:

(a) a fee prescribed by subregulation 4.13(1); or

(b) the fee in force at the end of the relevant period if regulation 4.13A applies.

relevant period means any of the following periods:

(a) the 2 year period commencing on 1 July 2011;

(b) after that period—each 2 year period commencing on a biennial anniversary of 1 July 2011.

4.14 Refund of fees by Tribunal

(1) The table sets out:

(a) circumstances in which all or part of the amount of the fee for an application for review of a decision is to be refunded; and

(b) the amount that is to be refunded.

Item	If ...	the amount to be refunded is ...
Refunds for severe financial hardship
1	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)	50% of the amount mentioned in subregulation 4.13(1)
General refunds
2	the applicant is not entitled to apply for review by the Tribunal	the amount that the applicant was required to pay by regulation 4.13
3	the decision to which the application relates is not subject to review by the Tribunal	the amount that the applicant was required to pay by regulation 4.13
4	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 Note: The conclusive certificate certifies that review would be contrary to the public interest.	the amount that the applicant was required to pay by regulation 4.13
Refunds after Tribunal decision
5	the decision to which the review relates is set aside or varied	50% of the amount mentioned in subregulation 4.13(1)
6	the application is remitted to the primary decision‑maker for reconsideration	50% of the amount mentioned in subregulation 4.13(1)

(2) If an application for review by the Tribunal is withdrawn, the fee paid on the application is to be refunded if the application is withdrawn because:

(a) the death has occurred, since the visa application was made, of:

(i) the applicant for the visa that was the subject of the application; or

(ii) a member of that applicant’s family unit; or

(iii) a review applicant; or

(b) the applicant for the visa that was the subject of the application has been granted a visa of the class applied for otherwise than because the Minister has reconsidered the primary application and the applicant’s score on the reconsideration is more than or equal to the applicable pass mark; or

(i) applied for another parent visa after lodging the application for review; and

(ii) wants to have a decision made on the application for the other parent visa.

4.15 Tribunal’s power to give directions

(1) For paragraph 349(2)(c) of the Act (which deals with the Tribunal’s power to remit):

(a) an application for a visa or entry permit made on or after 19 December 1989 is a prescribed matter; and

(b) subject to subregulation (4), a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit.

(2) For paragraph 349(2)(c) of the Act, the requiring of a security that is mentioned in paragraph 4.02(4)(f) is a prescribed matter.

(3) If the MRT remits a prescribed matter that is mentioned in subregulation (2) to the primary decision‑maker, the MRT may direct the primary decision‑maker:

(a) to indicate to the applicant that a condition specified by the MRT will be imposed on the visa if it is granted; and

(b) to require a security for compliance with the condition (whether or not a security has already been required).

Note 1: Prescribed matter: in this case, a matter that the Tribunal may remit for reconsideration.

Note 2: See s 390 of the Act, which modifies the Administrative Appeals Tribunal Act 1975 for the purposes of review by the Administrative Appeals Tribunal of migration decisions. Under s 43(1A)(c), taken to be inserted in the Administrative Appeals Tribunal Act for those purposes, the matters set out in regulation 4.15 apply also to review by the Administrative Appeals Tribunal.

(4) If, under subregulation 2.08E(2B), the MRT remits a prescribed matter mentioned in paragraph (1)(a) to the Minister for reconsideration, the MRT must not make a direction in relation to that matter other than the direction mentioned in subregulation 2.08E(2B).

4.16 Statement about decision under review

The number of copies that the Secretary must give to the Registrar under subsection 352(2) of the Act (which deals with the statement that the Secretary must give to the Tribunal) is 1.

4.17 Prescribed periods—invitation to comment or give additional information (Act, s 359B(2))

(1) This regulation applies, for subsection 359B(2) of the Act, if a person is invited to give additional information, or to comment on information, other than at an interview.

(2) If the invitation relates to an application for review of a decision that applies to a detainee seeking review of a decision under subsection 338(4) of the Act, the prescribed period for giving the information or comments:

(a) commences when the detainee receives the invitation; and

(b) ends at the end of:

(i) 2 working days after the day the detainee receives the invitation; or

(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(3) If the invitation relates to an application for review of a decision that applies to a detainee who is not seeking review of a decision under subsection 338(4) of the Act, the prescribed period for giving the information or comments:

(a) commences when the detainee receives the invitation; and

(b) ends at the end of:

(i) 7 days after the day the detainee receives the invitation; or

(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(4) If the invitation relates to any other application for review of a decision, the prescribed period for giving the information or comments:

(a) commences when the person receives the invitation; and

(b) ends at the end of:

(i) 14 days after the day the person receives the invitation; or

(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(6) A response to the invitation is taken to be given to the Tribunal when a registry of the Tribunal receives the response.

Note 1: If the Tribunal gives a person a document by a method specified in section 379A of the Act, the person is taken to have received the document at the time specified in section 379C of the Act in respect of the method.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

4.18 Prescribed periods—invitation to comment or give additional information (Act, s 359B(3))

(1) This regulation applies, for paragraph 359B(3)(b) of the Act, if a person is invited to give additional information, or to comment on information, at an interview.

(a) commences when the detainee receives the invitation; and

(b) ends at the end of 2 working days after the day the detainee receives the invitation.

(a) commences when the detainee receives the invitation; and

(b) ends at the end of 14 days after the day the detainee receives the invitation.

(4) If the invitation relates to any other application for review of a decision, the prescribed period for giving the information or comments:

(a) commences when the person receives the invitation; and

(b) ends at the end of 28 days after the day the person receives the invitation.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

4.18A Prescribed periods—invitation to comment or give additional information (Act, s 359B(4))

(1) This regulation applies, for subregulation 359B(4) of the Act, if:

(a) a person is invited to give additional information, or to comment on information, within a period prescribed in regulation 4.17; and

(b) the invitation is to give the information or comments other than at an interview; and

(2) If the invitation relates to an application for review of a decision that applies to a detainee seeking review of a decision under subsection 338(4) of the Act, the period by which the Tribunal may extend the prescribed period:

(a) commences when the detainee receives notice of the extended period; and

(b) ends at the end of:

(i) 2 working days after the day the detainee receives notice of the extended period; or

(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(3) If the invitation relates to an application for review of a decision that applies to a detainee who is not seeking review of a decision under subsection 338(4) of the Act, the period by which the Tribunal may extend the prescribed period:

(a) commences when the detainee receives notice of the extended period; and

(b) ends at the end of:

(i) 14 days after the day the detainee receives notice of the extended period; or

(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(4) If the invitation relates to any other application for review of a decision, the period by which the Tribunal may extend the prescribed period:

(a) commences when the person receives notice of the extended period; and

(b) ends at the end of:

(i) 14 days after the day the person receives notice of the extended period; or

(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(6) A response to the invitation is taken to be given to the Tribunal when a registry of the Tribunal receives the response.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

4.18B Prescribed periods—invitation to comment or give additional information (Act, s 359B(5))

(1) This regulation applies, for paragraph 359B(5)(b) of the Act, if:

(a) a person is invited to give additional information, or to comment on information, within a period prescribed in regulation 4.18; and

(b) the invitation is to give the information or comments at an interview; and

(a) commences when the detainee receives notice of the extended period; and

(b) ends at the end of 2 working days after the day the detainee receives notice of the extended period.

(a) commences when the detainee receives notice of the extended period; and

(b) ends at the end of 14 days after the day the detainee receives notice of the extended period.

(4) If the invitation relates to any other application for review of a decision, the period by which the Tribunal may extend the prescribed period:

(a) commences when the person receives notice of the extended period; and

(b) ends at the end of 14 days after the day the person receives notice of the extended period.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

4.19 Summons to attend before Tribunal

(1) For paragraph 363(3)(a) of the Act, this regulation sets out the manner of serving on a person a summons to appear before the Tribunal to give evidence.

(2) For paragraph 363(3)(b) of the Act, this regulation sets out the manner of serving on a person a summons to produce to the Tribunal such documents as are referred to in the summons.

(3) If the person has notified the Tribunal of an address for service under regulation 4.39, the summons must be served by one of the methods specified in section 379A of the Act.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

(4) If the person has not notified the Tribunal of an address for service under regulation 4.39, the summons must be served in one of the following ways:

(a) by handing it to the person personally;

(b) by handing it to another person who:

(i) is at the person’s last residential or business address known to the Tribunal; and

(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(iii) appears to be at least 16 years of age;

(i) within 3 working days (in the place of dispatch) of the date of the document; and

(ii) by prepaid post or by other prepaid means;

to the person’s last residential or business address known to the Tribunal.

4.20 Fees for persons giving evidence

(1) For the purposes of subsection 374(1) of the Act (which deals with the fees and allowances to be paid to a person summoned to give evidence), 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.

(2) The presiding member of the Tribunal is to determine the fees and allowances (if any) payable to a person under subregulation (1).

4.21 Prescribed periods—notice to appear before Tribunal

(1) For subsection 360A(4) of the Act, this regulation sets out the prescribed period of notice of the day on which, and the time and place at which, an applicant is scheduled to appear before the Tribunal in response to an invitation.

(2) If the invitation relates to an application for review of a decision that applies to a detainee seeking review of a decision under subsection 338(4) of the Act, the period of notice:

(a) commences when the detainee receives notice of the invitation to appear before the Tribunal; and

(b) ends at the end of:

(i) 2 working days after the day the detainee receives notice of the invitation to appear before the Tribunal; or

(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(3) If the invitation relates to an application for review of a decision that applies to a detainee who is not seeking review of a decision under subsection 338(4) of the Act, the period of notice:

(a) commences when the detainee receives notice of the invitation to appear before the Tribunal; and

(b) ends at the end of:

(i) 7 days after the day the detainee receives notice of the invitation to appear before the Tribunal; or

(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(4) If the invitation relates to any other application for review of a decision, the period of notice:

(a) commences when the person receives notice of the invitation to appear before the Tribunal; and

(b) ends at the end of:

(i) 14 days after the day the person receives notice of the invitation to appear before the Tribunal; or

(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

4.22 Numbers of Senior Members and members of Tribunal (Act, s 395)

(1) For paragraph 395(b) of the Act (which deals with the number of Senior Members of the Tribunal), 15 is prescribed.

(2) For paragraph 395(c) of the Act (which deals with the number of members of the Tribunal), 163 is prescribed.

4.23 Expedited review (close family visit visas)

(1) This regulation applies to review of a decision to refuse to grant a Sponsored (Visitor) (Class UL) visa, a Tourist (Class TR) visa or a Subclass 600 (Visitor) visa if and only if:

(a) the applicant stated in his or her application that he or she intended to visit Australia, or remain in Australia as a visitor, for the purposes of visiting an Australian citizen or an Australian permanent resident who is a parent, spouse, de facto partner, child, brother or sister of the applicant; and

(b) that application was made to allow the applicant to participate in an event of special family significance in which he or she is directly concerned; and

(d) that application was refused because either:

(i) the Minister was not satisfied that the expressed intention of the applicant only to visit Australia was genuine; or

(ii) the applicant did not satisfy public interest criterion 4011; and

(e) the application was made long enough before the event to allow for review by the Tribunal if the application were refused.

(3) The decision must be reviewed immediately by the Tribunal on receipt of an application for review of the decision.

(4) A review authority must give notice to the applicant of its decision in respect of an application for review as soon as practicable.

4.24 Expedited review (decisions to cancel visas)

(1) A decision to cancel a visa (other than a decision of a kind referred to in subsection 338(4) of the Act) must be reviewed immediately by the Tribunal on receipt by it of an application for review of the decision.

(2) The Tribunal must give notice of its decision in respect of an application for review to the applicant as soon as practicable.

4.25 Expedited review (certain applicants in immigration detention)

(1) If:

(a) a decision is made to refuse a substantive visa; and

(b) the person who applied for the visa is in immigration detention when the review application is made;

the Tribunal must review the decision immediately on receipt of the application.

(2) The Tribunal must give notice of its decision in respect of an application for review to the applicant as soon as practicable.

4.26 Prescribed periods—reconstitution of Tribunal (Act, s 355A)

For subparagraph 355A(2)(c)(ii) of the Act, the prescribed period:

(a) if the applicant for review of a decision, except a decision to which regulation 4.27 applies, is a detainee when the Tribunal is constituted for the review—starts when the Tribunal is constituted and ends at the end of 2 months after the day on which the Tribunal is constituted; or

(b) if the applicant for review is not a detainee when the Tribunal is constituted for the review—starts when the Tribunal is constituted and ends at the end of 3 months after the day on which the Tribunal is constituted.

4.27 Prescribed period for making certain decisions (Act, s 367)

For subsection 367(1) of the Act, the prescribed period starts when the application for review is received by the Tribunal and ends at the end of 7 working days after the day on which the application is received.

Note: Subsection 367(1) of the Act provides for the regulations to limit the time in which the Tribunal must review certain decisions on bridging visas.

4.27B Prescribed period for requesting written statement

For subsection 368D(4) of the Act, the prescribed period for requesting a written statement in relation to an oral statement made by the Tribunal under paragraph 368D(2)(a) of the Act starts when the Tribunal makes the oral statement and ends at the end of 14 days after the day on which the Tribunal makes the oral statement.

Division 4.2—Refugee Review Tribunal and decisions relating to protection visas

Subdivision 4.2.1—Introductory

4.28 Interpretation

Expressions used in this Division and in Part 7 of the Act have the same respective meanings in this Division as in that Part.

Subdivision 4.2.2—Tribunal members

4.29 Membership

For the purposes of subsection 458(2) of the Act, the prescribed number of members (other than the Principal Member) of the Tribunal is 179.

4.30 Prescribed periods—reconstitution of Tribunal (Act, s 422A)

For subparagraph 422A(2)(c)(ii) of the Act, the prescribed period:

(a) if the applicant for review of a decision is a detainee when the Tribunal is constituted for the review—starts when the Tribunal is constituted and ends at the end of 2 months after the day on which the Tribunal is constituted; or

Subdivision 4.2.3—General

4.31 Time for lodgement of application with Tribunal

(1) For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of an RRT‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 7 working days, commencing on:

(a) the day the applicant is notified of the decision; or

(b) if that day is not a working day—the first working day after that day.

(2) For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of an RRT‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.

Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.

4.31AA Giving application to the Tribunal

(1) An application for review by the Tribunal of an RRT‑reviewable decision must be given to the Tribunal by:

(a) leaving it with an officer of the Tribunal at a registry of the Tribunal, or with a person specified in a direction given by the Principal Member under section 420A of the Act; or

(b) sending it by pre‑paid post to a registry of the Tribunal; or

(c) having it delivered by post, or by hand, to an address specified in a direction given by the Principal Member under section 420A of the Act; or

(d) faxing it to a fax number specified in a direction given by the Principal Member under section 420A of the Act; or

(e) transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the Principal Member under section 420A of the Act.

(2) An application made to the Tribunal in accordance with paragraph (1)(a) or (b) is taken to have been received by the Tribunal at the time the Tribunal receives it.

(3) An application made to the Tribunal in accordance with paragraph (1)(c) is taken to have been received by the Tribunal at the time it is received at the relevant address.

(4) An application made to the Tribunal in accordance with paragraph (1)(d) is taken to have been received by the Tribunal at the time it is received at the relevant fax number.

(5) An application made to the Tribunal in accordance with paragraph (1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it.

4.31A Combined applications for review by the Tribunal

If:

(a) 2 or more applicants have combined their primary applications for a protection visa in a way permitted by Schedule 1 or regulation 2.08, 2.08A or 2.08B; and

(b) the Minister’s decisions in respect of 2 or more of those applicants are that protection visas not be granted; and

the applicants referred to in paragraph (b) may combine their applications for review by the Tribunal of the Minister’s decisions.

4.31B Review by the Tribunal—fee and waiver

(1) The fee for review by the Tribunal of an RRT‑reviewable decision is:

(b) if the application for review was made on or after 1 July 2003 and before 1 July 2011—$1,400; or

Note: The fee in paragraph (1)(c) is subject to increase under regulation 4.31BA.

(2) The fee is payable within 7 days of the time when notice of the decision of the Tribunal is taken to be received by the applicant in accordance with section 441C of the Act.

Note: Under regulation 4.40, notice of a decision of the Tribunal is given by one of the methods specified in section 441A of the Act.

(3) No fee is payable if the Tribunal remits a matter to which the decision relates with a permissible direction under regulation 4.33.

(3A) No further fee is payable under this regulation if:

(a) a fee has been paid under this regulation; and

(b) following the Tribunal’s determination, the matter in relation to which the fee was paid is remitted by a court for reconsideration by the Tribunal.

(4) If 2 or more applications for review are combined in accordance with regulation 4.31A, only 1 fee is payable for reviews that result from those applications.

4.31BA Biennial increases in fees

Despite any other provision of these Regulations, the fee prescribed by paragraph 4.31B(1)(c) is increased in accordance with regulation 4.31BB, on each biennial anniversary of 1 July 2011.

4.31BB Calculation of increase

where:

earlier CPI number is the CPI number for the last March quarter before the beginning of the relevant period; and

latest CPI number is the CPI number for the last March quarter before the end of the relevant period.

(5) In this regulation:

CPI number means the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician.

fee means:

(a) a fee prescribed by paragraph 4.31B(1)(c); or

(b) the fee in force at the end of the relevant period if regulation 4.31BA applies.

relevant period means any of the following periods:

(a) the 2 year period commencing on 1 July 2011;

(b) after that period—each 2 year period commencing on a biennial anniversary of 1 July 2011.

4.31C Refund (or waiver) of fee for review by the Tribunal

(1) This regulation applies to a review of a decision if:

(a) both:

(i) on review by a court, the decision is remitted for reconsideration by the Tribunal; and

(ii) the Tribunal remits a matter to which the decision relates with a permissible direction under regulation 4.33; or

(b) the Minister, under section 417 of the Act, has substituted for the decision of the Tribunal a decision that is favourable to the applicant.

(2) A fee paid under regulation 4.31B, or liable to be paid under regulation 4.31B, in relation to a decision to which this regulation applies is to be refunded, or waived, as the case requires.

4.33 Powers of Tribunal

(1) For the purposes of paragraph 415(2)(c) of the Act, an application for a protection visa is prescribed.

(2) For the purposes of paragraphs 415(2)(c) of the Act and 43(1A)(c) of the Administrative Appeals Tribunal Act 1975 (as substituted in relation to an RRT‑reviewable decision by section 452 of the Act), it is a permissible direction that the applicant must be taken to have satisfied the criteria for the visa that are specified in the direction.

(3) For paragraph 415(2)(c) of the Act and paragraph 43(1A)(c) of the Administrative Appeals Tribunal Act 1975 (as substituted in relation to an RRT‑reviewable decision by section 452 of the Act):

(a) it is a permissible direction that the applicant is a refugee within the meaning of subsection 5H(1) of the Act; and

(aa) it is a permissible direction that subsection 36(3) of the Act does not apply to the applicant; and

(b) it is not a permissible direction that:

(i) subsection 5H(1) of the Act applies to the applicant; or

(ii) subsection 5H(1) does not apply to the applicant because of subsection 5H(2); or

(iii) the applicant satisfies, or does not satisfy, the criterion in subsection 36(1C) of the Act.

(4) For paragraph 415(2)(c) of the Act and paragraph 43(1A)(c) of the Administrative Appeals Tribunal Act 1975 (as substituted in relation to an RRT‑reviewable decision by section 452 of the Act):

(a) it is a permissible direction that the applicant satisfies each matter, specified in the direction, that relates to establishing whether the applicant is a person to whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm; and

(b) it is not a permissible direction that the applicant satisfies a matter that relates to establishing whether there are serious reasons for considering that:

(i) the applicant has committed a crime against peace, a war crime or a crime against humanity, as defined by an international instrument mentioned in regulation 2.03B; or

(ii) the applicant committed a serious non‑political crime before entering Australia; or

(iii) the applicant has been guilty of acts contrary to the purposes and principles of the United Nations; and

(c) it is not a permissible direction that the applicant satisfies a matter that relates to establishing whether there are reasonable grounds that:

(i) the applicant is a danger to Australia’s security; or

(ii) the applicant, having been convicted by a final judgment of a particularly serious crime, including a crime that consists of the commission of a serious Australian offence or serious foreign offence, is a danger to the Australian community.

(5) For paragraph 415(2)(c) of the Act and paragraph 43(1A)(c) of the Administrative Appeals Tribunal Act 1975 (as substituted in relation to an RRT‑reviewable decision by section 452 of the Act), it is a permissible direction that the grant of the visa is not prevented by section 91W, 91WA or 91WB of the Act.

4.34 Statement about decision under review—number of copies

For the purposes of subsection 418(2) of the Act, the prescribed number of copies of a statement of the kind mentioned in that subsection is 1.

4.35 Prescribed periods—invitation to comment or give additional information

(1) This regulation applies, for subsection 424B(2) of the Act, if a person is invited to give additional information, or to comment on information, other than at an interview.

(2) If the invitation relates to an application for review of a decision that applies to a detainee, the prescribed period for giving the information or comments:

(a) commences when the detainee receives the invitation; and

(b) ends at the end of:

(i) 7 days after the day the detainee receives the invitation; or

(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(3) If the invitation relates to any other application for review of a decision, the prescribed period for giving the information, comments or response:

(a) commences when the person receives the invitation; and

(b) ends at the end of:

(i) 14 days after the day the person receives the invitation; or

(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(4) A response to the invitation is taken to be given to the Tribunal when a registry of the Tribunal receives the response.

Note 1: If the Tribunal gives a person a document by a method specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

4.35A Prescribed periods—invitation to comment or give additional information (Act, s 424B(3))

(1) This regulation applies, for paragraph 424B(3)(b) of the Act, if a person is invited to give additional information, or to comment on information, at an interview.

(2) If the invitation relates to an application for review of a decision that applies to a detainee, the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 14 days after the day on which the invitation is received.

(3) If the invitation relates to an application for review of a decision that does not apply to a detainee, the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 28 days after the day on which the invitation is received.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

4.35B Prescribed periods—invitation to comment or give additional information (Act, s 424B(4))

(1) This regulation applies, for subsection 424B(4) of the Act, if:

(a) a person is invited to give additional information, or to comment on information, within a period prescribed in regulation 4.35; and

(b) the invitation is to give the information or comments other than at an interview; and

(2) The period by which the Tribunal may extend the prescribed period:

(a) commences when the person receives notice of the extended period; and

(b) ends at the end of:

(i) 14 days after the day the person receives notice of the extended period; or

(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(4) A response to the invitation is taken to be given to the Tribunal when a registry of the Tribunal receives the response.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

4.35C Prescribed periods—invitation to comment or give additional information (Act, s 424B(5))

(1) This regulation applies, for paragraph 424B(5)(b) of the Act, if:

(a) a person is invited to give additional information, or to comment on information, within a period prescribed in regulation 4.35A; and

(b) the invitation is to give the information or comments at an interview; and

(2) The period by which the Tribunal may extend the prescribed period:

(a) commences when the person receives notice of the extended period; and

(b) ends at the end of 14 days after the day the person receives notice of the extended period.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

4.35D Prescribed periods—notice to appear before Tribunal

(1) For subsection 425A(3) of the Act, this regulation sets out the prescribed period of notice of the day on which, and the time and place at which, an applicant is scheduled to appear before the Tribunal in response to an invitation.

(2) If the invitation relates to an application for review of a decision that applies to a detainee, the period of notice:

(a) commences when the detainee receives notice of the invitation to appear before the Tribunal; and

(b) ends at the end of:

(i) 7 days after the day the detainee receives notice of the invitation to appear before the Tribunal; or

(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

(3) If the invitation relates to any other application for review of a decision, the period of notice:

(a) commences when the person receives notice of the invitation to appear before the Tribunal; and

(b) ends at the end of:

(i) 14 days after the day the person receives notice of the invitation to appear before the Tribunal; or

(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

4.35F Prescribed period for requesting written statement

For subsection 430D(4) of the Act, the prescribed period for requesting a written statement in relation to an oral statement made by the Tribunal under paragraph 430D(2)(a) of the Act starts when the Tribunal makes the oral statement and ends at the end of 14 days after the day on which the Tribunal makes the oral statement.

4.36 Duties, powers and functions of officers of Tribunal

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

(a) the issuing of a summons by the Tribunal under paragraph 427(3)(a) or (b) of the Act;

(b) the obtaining of documents in connection with the review of an RRT‑reviewable decision;

(c) the directing of attendance at a registry of the Tribunal in connection with the review of an RRT‑reviewable decision.

4.37 Fees and allowances for persons giving evidence

(1) For the purposes of subsection 436(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.

(2) The principal member of the Tribunal is to determine the fees and allowances (if any) payable to a person under subregulation (1).

Division 4.3—Service of documents

4.38 Definition for Division 4.3

In this Division:

Tribunal means the Migration Review Tribunal or the Refugee Review Tribunal.

4.39 Address for service

(1) In this regulation:

lodge an address for service, in relation to an applicant for review, means give the Tribunal notice in writing of an address at which documents relating to a review may be sent to the applicant.

(2) An applicant for review may:

(a) lodge an address for service in a review; and

(b) at any time after lodging an address for service, lodge a new address for service in that review.

(3) If an applicant for review lodges with the Tribunal a new address for service under paragraph (2)(b):

(a) that new address becomes the applicant for review’s address for service in the review; and

(b) he or she must, immediately after doing so, serve on the Minister a notice of that new address for service.

(4) An address for service may be, but need not be, the applicant’s residential address.

4.40 Notice of decision of Tribunal

(1) A notice or statement to be given to an applicant in relation to a decision of the Migration Review Tribunal must be given by one of the methods specified in section 379A of the Act.

Note 1: If the Migration Review Tribunal gives a person a document by a method specified in section 379A of the Act, the person is taken to have received the document at the time specified in section 379C of the Act in respect of the method.

Note 2: A document served on a person in immigration detention is served in the manner specified in regulation 5.02.

(2) A notice or statement to be given to an applicant in relation to a decision of the Refugee Review Tribunal must be given by one of the methods specified in section 441A of the Act.

Note 1: If the Refugee Review Tribunal gives a person a document by a method specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method.

Note 2: A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

Division 4.4—Review of protection visa decisions by the Immigration Assessment Authority

4.41 New information not required to be given to referred applicant

For paragraph 473DE(3)(c) of the Act, new information given to the Immigration Assessment Authority by a referred applicant for the purposes of the Authority’s review of a fast track reviewable decision in relation to the referred applicant is prescribed.

4.42 Periods for giving information or comments

For subsection 473DF(2) of the Act, the period for giving information or comments in response to an invitation given by the Immigration Assessment Authority to a referred applicant is as follows:

(a) for a referred applicant in immigration detention—3 working days after the referred applicant is notified of the invitation; and

(b) in any other case:

(i) for an oral invitation to give information or comments in writing—7 days after the invitation is given; and

(ii) for an oral invitation to give information or comments at an interview—14 days after invitation is given; and

(iii) for a written invitation to give information or comments in writing or at an interview—14 days after the referred applicant is notified of the invitation.

4.43 Permissible directions on remittal

(1) For paragraph 473CC(2)(b) of the Act, this regulation prescribes directions that the Immigration Assessment Authority is permitted to make in relation to the review of a fast track reviewable decision in respect of a protection visa application by a referred applicant.

(2) It is a permissible direction that:

(a) the referred applicant must be taken to have satisfied the criteria for the visa that are specified in the direction; or

(b) the referred applicant is a refugee within the meaning of subsection 5H(1) of the Act; or

(d) the referred applicant satisfies each matter, specified in the direction, that relates to establishing whether the referred applicant is a person to whom Australia has protection obligations because the criterion mentioned in paragraph 36(2)(aa) of the Act is satisfied in relation to the applicant.

(3) However, it is not a permissible direction that:

(a) subsection 5H(1) of the Act applies to the referred applicant; or

(b) subsection 5H(1) does not apply to the referred applicant because of subsection 5H(2); or

(d) the referred applicant satisfies a matter that relates to establishing whether there are serious reasons for considering that:

(i) the referred applicant has committed a crime against peace, a war crime or a crime against humanity, as defined by an international instrument mentioned in regulation 2.03B; or

(ii) the referred applicant committed a serious non‑political crime before entering Australia; or

(iii) the referred applicant has been guilty of acts contrary to the purposes and principles of the United Nations; or

(e) the referred applicant satisfies a matter that relates to establishing whether there are reasonable grounds that:

(i) the referred applicant is a danger to Australia’s security; or

(ii) the referred applicant, having been convicted by a final judgment of a particularly serious crime, including a crime that consists of the commission of a serious Australian offence or serious foreign offence, is a danger to the Australian community.

(4) It is a permissible direction that the grant of the visa is not prevented by section 91WB of the Act.

Part 5—Miscellaneous

Division 5.1—Service of documents

5.01 Definition for Division 5.1

In this Division:

document includes:

(a) a letter; and

(b) an invitation, notice, notification, statement or summons, if it is in writing.

5.02 Service of document on person in immigration detention

For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.

Division 5.2—Procedure of commissioners and prescribed authorities

Note: If a person is proposed to be deported because he or she was convicted of certain serious offences (set out in section 203 of the Act), he or she may ask the Minister to appoint a Commissioner to inquire into whether the grounds for the deportation have been made out.

Section 253 of the Act provides that if a person arrested as a deportee asserts that he or she is not the person named in the deportation order, and makes a statutory declaration saying so, the person must be taken before a prescribed authority, who must inquire into whether there are reasonable grounds for supposing the person to be a deportee. The persons who may be prescribed authorities are set out in section 255 and include a judge or former judge, a legal practitioner of at least 5 years’ standing, and a magistrate.

5.04 Power of Commissioner to send for witnesses and documents

A Commissioner appointed under subsection 203(4) of the Act (which deals with the appointment of commissioners) may, by writing signed by the Commissioner, summon any person:

(a) to attend before the Commissioner at a time and place specified in the summons; and

(b) to give evidence; and

(c) to produce any books or documents in the person’s custody or control which the person is required by the summons to produce.

5.05 Duty of witness to continue in attendance

(1) A person who has been summoned to attend before a Commissioner as a witness must appear and report from day to day, unless excused by the Commissioner.

Penalty: 10 penalty units.

(2) Strict liability applies to subregulation (1).

5.06 Arrest of witness failing to appear

(1) If a person who has been summoned to attend before a Commissioner fails:

(a) to attend before the Commissioner as required by the summons; or

(b) to appear and report in accordance with regulation 5.05;

the Commissioner may, on being satisfied that the summons has been duly served and that reasonable expenses have been paid or tendered to the person, issue a warrant for the person’s arrest.

(2) A warrant authorises:

(a) the arrest and bringing before the Commissioner of the person; and

(b) the detention of the person in custody for the purposes specified in the warrant until the person is released by order of the Commissioner.

(3) A warrant may be executed by a member of the police force of the Commonwealth or of a State or Territory or by any person to whom it is addressed, and the person executing it has power to break and enter any place, building or vessel, using any force that is necessary and reasonable, for the purpose of executing the warrant.

(4) The arrest of a person under this regulation does not relieve that person from any liability incurred by the person because of the failure of that person to attend before the Commissioner.

5.07 Witnesses’ fees

(1) A person who attends to give evidence before a Commissioner is, in respect of that attendance, to be paid such fees and travelling expenses as the Commissioner allows in accordance with the scale in Schedule 2 to the Public Works Committee Regulations as in force from time to time.

(2) The fees and travelling expenses are payable:

(a) in the case of a witness summoned at the request of the person to whom the investigation relates—by that person; and

(b) in any other case—by the Commonwealth.

5.08 Power to examine on oath or affirmation

(1) A Commissioner may administer an oath to a person appearing as a witness before the Commissioner, whether the witness has been summoned or appears without being summoned, and may examine the witness on oath.

(2) If a witness conscientiously objects to swear an oath, the witness may make an affirmation that the witness conscientiously objects to swear an oath and that the witness will state the truth, the whole truth, and nothing but the truth to all questions the witness is asked.

(3) An affirmation so made is of the same force and effect, and entails the same liabilities, as an oath.

5.09 Offences by witnesses

(1) A person summoned to attend before a Commissioner as a witness must not:

(a) fail to attend, after payment or tender to the person of a reasonable sum for expenses of attendance; or

(b) refuse to be sworn or to make an affirmation as a witness; or

(d) refuse or fail to produce a book or document which the person was required by the summons to produce.

Penalty: 10 penalty units.

(2) Paragraphs (1)(a) and (d) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subregulation (2) (see subsection 13.3(3) of the Criminal Code).

(3) Strict liability applies to paragraph (1)(a).

5.10 Statements of person not admissible in evidence against the person

A statement or disclosure made by a person in answer to a question put to the person during an investigation by a Commissioner is not admissible in evidence against the person in any civil or criminal proceedings other than:

(a) proceedings in respect of a false answer; or

(b) proceedings relating to the deportation of the person.

5.11 Representation by counsel etc

(1) In an investigation before a Commissioner, the person summoned to appear and the Minister are each entitled to be represented by a barrister or solicitor or by an agent approved by the Commissioner.

(2) A barrister, solicitor or agent appearing before a Commissioner may examine or cross‑examine witnesses and address the Commissioner.

5.12 Offences in relation to Commissioners

A person must not:

(a) intentionally insult or disturb a Commissioner when exercising powers and functions under the Act; or

(b) interrupt the proceedings of a Commissioner; or

(d) by writing or speech use words calculated to influence dishonestly a Commissioner or a witness before a Commissioner.

Penalty: 10 penalty units.

5.13 Protection of Commissioners, barristers and witnesses

(1) A Commissioner has, in the performance of the duties of a Commissioner, the same protection and immunity as a Justice of the High Court.

(2) A barrister, solicitor or approved agent appearing before a Commissioner has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

(3) A witness summoned to attend, or appearing, before a Commissioner has the same protection as a witness in proceedings in the High Court.

5.14 Procedure of prescribed authorities

This Part applies to:

(a) prescribed authorities referred to in section 255 of the Act; and

(b) proceedings before those prescribed authorities under section 253 of the Act;

in the same manner as it applies to Commissioners and proceedings before Commissioners and as if references in those provisions to a Commissioner were references to a prescribed authority.

Division 5.3—General

5.15 Behaviour concern non‑citizen

For the purposes of paragraph (e) of the definition of behaviour concern non‑citizen in subsection 5(1) of the Act, each of the following circumstances is prescribed in relation to the exclusion of a person from a country other than Australia:

(a) that the person refused or failed to present a passport on request by the competent authorities in that country in circumstances in which it would be unreasonable to refuse or fail to do so;

(b) that the person presented to those authorities a passport that was a bogus document;

(c) that the person was reasonably refused entry to that country on the ground that the person was not a genuine visitor;

(d) that the authorities of that country considered the person to be a threat to the national security of the country.

5.15A Certain New Zealand citizens

For the purposes of paragraph 32(2)(c) of the Act, it is declared that the class of persons each of whom:

(a) is a New Zealand citizen who holds, and has presented to an officer, a New Zealand passport that is in force; and

(b) is not a health concern non‑citizen; and

(c) is a behaviour concern non‑citizen only because of having been excluded from a country other than Australia in circumstances that, in the opinion of the Minister, do not warrant the exclusion of the person from Australia;

is a class of persons for whom a visa of a class other than Special Category (Temporary) (Class TY) would be inappropriate.

5.15C Excised offshore places

(1) For paragraph (d) of the definition of excised offshore place in subsection 5(1) of the Act, the Coral Sea Islands Territory is prescribed.

(2) For paragraph (e) of the definition of excised offshore place in subsection 5(1) of the Act, the following islands are prescribed:

(a) all islands that:

(i) form part of Queensland; and

(ii) are north of latitude 21 south;

(b) all islands that:

(i) form part of Western Australia; and

(ii) are north of latitude 23 south;

(i) form part of the Northern Territory; and

(ii) are north of latitude 16 south.

5.16 Prescribed diseases—health concern non‑citizen (Act, s 5(1))

For the purposes of the definition of health concern non‑citizen in subsection 5(1) of the Act, tuberculosis (being tuberculosis that is not being controlled with medication, and in respect of which the person suffering from it refuses to sign an undertaking to visit a Commonwealth Medical Officer within 7 days of entering Australia) is a prescribed disease.

5.17 Prescribed evidence of English language proficiency (Act, s 5(2)(b))

For the purposes of paragraph 5(2)(b) of the Act (dealing with whether a person has functional English), the evidence referred to in each of the following paragraphs is prescribed evidence of the English language proficiency of a person:

(a) evidence specified by the Minister in an instrument in writing for this paragraph;

(i) the person holds an award (being a degree, a higher degree, a diploma or a trade certificate) that required at least 2 years of full‑time study or training; and

(ii) all instruction (including instruction received in other courses for which the person was allowed credit) for that award was conducted in English;

(e) evidence that the person has attained the functional level of the ACCESS test, being evidence in the form of a copy of results of a test:

(i) completed not more than 12 months before the person applies for the grant of a visa in relation to which those results are relevant; or

(ii) completed after the application is made;

and certified by the body that conducted the test as the results of the test of the person;

(f) evidence that the person has been assessed as having functional English by the provider of a course that is an approved English course for the purposes of section 4 of the Immigration (Education) Act 1971;

(h) in the case of a person who is an applicant for a Business Skills—Established Business (Residence) (Class BH) visa—evidence that the person has a score of at least 20 points under Part 3 of Schedule 7, being a score awarded on the basis of an interview of the person for the purpose of ascertaining that score;

(j) if:

(i) the person is an applicant for a visa of a class that is not mentioned in paragraph (h); and

(ii) evidence referred to in paragraph (a) cannot be provided by the person; and

(iii) it is not reasonably practicable for the person to attend at a place where, or time when, he or she could be subjected to a test mentioned in paragraph (e) or (f);

evidence that the person has been determined by the Minister, on the basis of an interview with the person, to have functional English.

5.18 Prescribed laws relating to control of fishing

For the purposes of paragraph 262(1)(b) of the Act (specifying laws that, if broken by a non‑citizen in certain circumstances, will render the non‑citizen liable to repay costs to the Commonwealth), the following laws are prescribed:

(a) the following laws of the Commonwealth:

(i) the Continental Shelf (Living Natural Resources) Act 1968;

(ii) the Fisheries Act 1952;

(iii) the Fisheries Management Act 1991;

(iv) the Torres Strait Fisheries Act 1984;

(b) the following laws of Queensland:

(i) the Fisheries Act 1976;

(ii) the Fishing Industry Organisation and Marketing Act 1982;

5.19 Approval of nominated positions (employer nomination)

(1) A person (a nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2) The application must:

(a) be made in accordance with approved form 1395 (Internet); and

(b) be accompanied by the fee mentioned in regulation 5.37.

Temporary Residence Transition nomination

(3) The Minister must, in writing, approve a nomination if:

(a) the application for approval:

(i) is made in accordance with subregulation (2); and

(ii) identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

(iii) identifies an occupation, in relation to the position, that:

(A) is listed in ANZSCO; and

(B) has the same 4‑digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa; and

(b) the nominator:

(i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Temporary Work (Skilled)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

(ii) is actively and lawfully operating a business in Australia; and

(iii) did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

(i) both of the following apply:

(A) in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Temporary Work (Skilled)) visa identified in subparagraph (a)(ii) has:

(I) held one or more Subclass 457 visas for a total period of at least 2 years; and

(II) been employed in the position in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa for a total period of at least 2 years (not including any period of unpaid leave);

(B) the employment in the position has been full‑time, and undertaken in Australia; or

(ii) all of the following apply:

(A) the person holds the Subclass 457 (Temporary Work (Skilled)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub‑subparagraph 2.72(10)(d)(iii)(B) or sub‑subparagraph 2.72(10)(e)(iii)(B);

(B) the nominator nominated the occupation;

(C) the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

(d) for a person to whom subparagraph (c)(i) applies:

(i) the person will be employed on a full‑time basis in the position for at least 2 years; and

(ii) the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(i) are provided; or

(ii) would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

(f) either:

(i) the nominator:

(A) fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

(B) complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

(ii) it is reasonable to disregard subparagraph (i); and

Note: Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.

(g) either:

(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

(h) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

Direct Entry nomination

(4) The Minister must, in writing, approve a nomination if:

(a) the application for approval:

(i) is made in accordance with subregulation (2); and

(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

(b) the nominator:

(i) is actively and lawfully operating a business in Australia; and

(ii) directly operates the business; and

(c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

(d) both of the following apply:

(i) the employee will be employed on a full‑time basis in the position for at least 2 years;

(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(i) are provided; or

(ii) would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

(f) either:

(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

(g) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

(h) either:

(i) both of the following apply:

(A) the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub‑subparagraph;

(B) either:

(I) the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub‑sub‑subparagraph; or

(II) the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub‑sub‑subparagraph (I); or

(ii) all of the following apply:

(A) the position is located in regional Australia;

(B) there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

(C) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

(D) the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;

(E) the business operated by the nominator is located at that place;

(F) a body that is:

(I) specified by the Minister in an instrument in writing for this sub‑subparagraph; and

(II) located in the same State or Territory as the location of the position;

has advised the Minister about the matters mentioned in paragraph (e) and sub‑subparagraphs (B) and (C).

(5) The Minister must refuse a nomination if neither of subregulations (3) and (4) applies.

(6) As soon as practicable after deciding a nomination, the Minister must give the nominator:

(a) a copy of the written approval or refusal; and

(b) if the Minister refuses the nomination:

(i) a written statement of the reasons why the nomination was refused; and

(ii) a written statement that the decision is an MRT‑reviewable decision.

Note: Division 4.1 deals with review of decisions. Paragraph 4.02(4)(e) provides that a decision under regulation 5.19 to refuse an application is an MRT‑reviewable decision. MRT‑reviewable decision is defined in Division 2 of Part 5 of the Act.

(7) In this regulation:

adverse information has the meaning given by subregulation 2.57(3).

associated with has the meaning given by subregulation 2.57(2).

regional Australia means a part of Australia specified by the Minister in an instrument in writing for this definition.

5.19A Designated investment

(1) Subject to subregulation (2), the Minister may, by legislative instrument, specify a security issued by an Australian State or Territory government authority as a security in which an investment is a designated investment for the purposes of a Part of Schedule 2.

(2) The Minister may so specify a security if and only if:

(a) an investment in the security matures in not less than 4 years from its date of issue; and

(b) repayment of principal is guaranteed by the issuing authority; and

(c) an investment in the security cannot be transferred or redeemed before maturity except by operation of law or under other conditions acceptable to the Minister; and

(d) investment in the security is open to the general public at commercially competitive rates of return; and

(e) the Minister is satisfied that the Commonwealth will not be exposed to any liability as a result of an investment in the security by a person.

5.19B Complying investment

(1) An investment by a person (the investor) is a complying investment if all of the requirements in this regulation are met.

Description

(2) The investment must consist of one or more of the following:

(a) an investment in a government bond (however described) of the Commonwealth, a State or Territory; or

(b) a direct investment in an Australian proprietary company that meets the following requirements:

(i) the company is not listed on an Australian stock exchange;

(ii) the company has not been established wholly or substantially for the purpose of creating compliance with this paragraph;

(iii) the investment is an ownership interest in the company;

(c) an investment in a managed fund (directly or through an investor directed portfolio service) for a purpose specified by the Minister in an instrument, in writing, for this paragraph.

(3) The funds used to make the investment are:

(a) unencumbered; and

(b) lawfully acquired.

Investor

(4) The investor must be an individual.

(5) The investor must make the investment:

(a) personally; or

(b) with the investor’s spouse or de facto partner; or

(i) the investor holds all of the issued shares; or

(ii) the investor and the investor’s spouse or de facto partner hold all of the issued shares; or

(d) by means of a trust:

(i) that is lawfully established; and

(ii) of which:

(A) the investor is the sole trustee; or

(B) the investor and the investor’s spouse or de facto partner are the sole trustees; and

(iii) of which:

(A) the investor is the sole beneficiary; or

(B) the investor and the investor’s spouse or de facto partner are the sole beneficiaries.

(6) If:

(a) an investor withdraws money from a complying investment, or cancels the investment; and

(b) the investor makes an investment of at least the value of the withdrawn money or cancelled investment in one or more other investments mentioned in subregulation (2); and

the investment is taken not to have ceased to be a complying investment during the period between the events mentioned in paragraphs (a) and (b).

Note: Regulations 5.19C to 5.19F are reserved for future use.

Division 5.3A—Offences and civil penalties in relation to work by non‑citizens

5.19G Allowing an unlawful non‑citizen to work

(1) For paragraph 245AB(2)(a) of the Act, the computer system operated by the Department, and known as “Visa Entitlement Verification Online”, or “VEVO”, is prescribed.

(2) For paragraph 245AB(2)(b) of the Act, each of the following is a prescribed thing:

(a) the entry into a contract under which a party to the contract performs either or both of the following functions:

(i) verifying that a person has the required permission to work in Australia (however that is described in the contract);

(ii) supplying persons who have the required permission to work in Australia (however that is described in the contract);

(b) the inspection of:

(i) a document that appears to be the worker’s Australian passport; or

(ii) a document that appears to be the worker’s New Zealand passport; or

(iii) a document that appears to be the worker’s Australian certificate of citizenship, accompanied by a form of identification featuring a photograph of the worker; or

(iv) a document that appears to be a certificate of evidence of the worker’s Australian citizenship, accompanied by a form of identification featuring a photograph of the worker; or

(v) a document that appears to be the worker’s Australian birth certificate, accompanied by a form of identification featuring a photograph of the worker; or

(vi) a document that appears to be a Certificate of Evidence of Resident Status for the worker, accompanied by a form of identification featuring a photograph of the worker; or

(vii) a document that appears to be a Certificate of Status for New Zealand Citizens in Australia for the worker, accompanied by a form of identification featuring a photograph of the worker.

Example: An example of a form of identification is a driver’s licence.

Note: Subsection 245AB(1) of the Act does not apply if reasonable steps are taken at reasonable times to verify that a worker is not an unlawful non‑citizen, including (but not limited to) either of the following steps:

(a) using a computer system prescribed by the regulations to verify that matter;

(b) doing any one or more things prescribed by the regulations.

5.19H Allowing a lawful non‑citizen to work in breach of a work‑related condition

(1) For paragraph 245AC(2)(a) of the Act, the computer system operated by the Department, and known as “Visa Entitlement Verification Online”, or “VEVO”, is prescribed.

(2) For paragraph 245AC(2)(b) of the Act, each of the following is a prescribed thing: