The added complexities of s 347

 
 

In a typically complex system, we then have to go to s 347 of the Act which sets out the outer limits of what the regulations may set.  Many get confused when reading s 347 thinking that these are the time limits. In fact the time limits are found in Reg 4.10!  S 347, for the record, states:

 

347.     (1)        An application for review of a Part 5-reviewable decision must:

(a)        be made in the approved form; and

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

(i)         if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) - 28 days after the notification of the decision; or

(ii)        if the Part 5-reviewable decision is covered by subsection 338(5), (6), (7) or (8) - 70 days after the notification of the decision; or

(iii)       if the Part 5-reviewable decision is covered by subsection 338(9) - the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

(c)        be accompanied by the prescribed fee (if any).

 

Generally who may apply for Part 5 review

 

S 347(2)           An application for review may only be made by:

(a)        if the Part 5- reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) - the non-citizen who is the subject of that decision; or

(b)        if the Part 5-reviewable decision is covered by subsection 338(5) or (8) - the sponsor or nominator referred to in the subsection concerned; or

(c)        if the Part 5-reviewable decision is covered by subsection 338(6) or (7) - the relative referred to in the subsection concerned; or

(d)        if the Part 5-reviewable decision is covered by subsection 338(9) - the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection.

 

(3)        If the Part 5-reviewable decision was covered by subsection 338(2), (3), (3A) or (4), 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.

 

(3A)     If the primary decision was covered by subsection 338(7A), an application for review may only be made by a non-citizen who:

(a)        was physically present in the migration zone at the time when the decision was made; and

(b)        is physically present in the migration zone when the application for review is made.

 

(4)        If the Part 5-reviewable decision was covered by subsection 338(4), the approved form for an application for review must include a statement advising the applicant that the applicant may:

(a)        request the opportunity to appear before the Tribunal; and

(b)        request the Tribunal to obtain oral evidence from a specified person or persons.

 

A request must be made in the approved form and must accompany the application for review.

 

Note the particular limiting effects of s 347(3) that the applicant must be physically present in the migration zone when the application for Part 5 review is made.  This means for the standard onshore visa, if there is a refusal and the visa applicant is offshore that person must return to Australia in order to have a Part 5 review right.

 

Note the particular crippling effect of s 347 (3A).  This would cover all of the new skilled visas AND the new ENS visa application if lodged offshore as these visas can now be granted onshore or offshore.  If the person applied for the visa offshore such persons must be present in Australia at both time of decision and time of lodging the AAT application. This could be difficult to plan for and would require close monitoring and liaison with the decision maker and of course the goodwill of the decision maker.

 

Thus an ENS visa applicant applying offshore although sponsored by an Australian employer does not have AAT rights unless present in Australia at time of visa refusal!  Not so for a subclass 457 visa applicant in similar circumstances because the subclass 457 visa refusal would be covered by s 338(9).

 

Sponsorship, nominations and subclass 457 visas

 

The time of decision criteria for the subclass 457 visa states :

(4)  The applicant meets the requirements of this subclause if: 

(a)  each of the following applies: 

(i)  a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

(ii)  the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

(iii)  the approval of the nomination has not ceased as provided for in regulation 2.75;

 

Note that the nomination must not have lapsed. Reg 2.75 states :

 

Reg 2.75    Period of approval of nomination — Subclass 457 (Temporary Work (Skilled)) visa 

(1)  This regulation applies to a nomination of an occupation in which a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa is identified as the person who will work in the occupation.

(2)  An approval of a nomination ceases on the earliest of:

(a)  the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and

(b)  12 months after the day on which the nomination is approved; and

(c)  the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and

(d)  if the approval of the nomination is given to a standard business sponsor — 3 months after the day on which the person’s approval as a standard business sponsor ceases; and

(e)  if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act — the day on which the person’s approval as a standard business sponsor is cancelled; 

 

Thus the normal situation is that a nomination expires 12 months after approval. But note the other occasions. One is 3 months after a sponsorship ceases. The approval of a sponsor is government by s140G which states :

 

Section 140G    Terms of approval as a sponsor 

(1)  An approval as a sponsor may be on terms specified in the approval.

(2)  The terms must be of a kind prescribed by the regulations.

Note:    The following are examples of the kinds of terms that might be set out in the regulations:

(a)  the number of people whom the approved sponsor may sponsor under the approval;

(b)  the duration of the approval.

(3)  An actual term may be prescribed by the regulations.

(4)  Different kinds of terms may be prescribed for:

(a)  different kinds of visa (however described); and

(b)  different classes in relation to which a person may be approved as a sponsor. 

 

Reg 2.63 states :

 

Reg 2.63    Standard business sponsor, temporary activities sponsor or temporary work sponsor 

 (1)  For subsection 140G(2) of the Act, a kind of term of an approval as a standard business sponsor, temporary activities sponsor or temporary work sponsor is the duration of the approval.  

(2)  The duration of the approval may be specified: 

(a)  as a period of time; or

(b)  as ending on a particular date; or

(c)  as ending on the occurrence of a particular event.

 

In this regard the PAM states :

 

Under policy, all temporary activities sponsorships should be approved for a period of 5 years commencing from the date of approval.[1]

 

But at times Immigration may set a shorter time especially for startups (like 18 months).

 

So there are a number of time limits to identify and note in a bring up system for diaries – One is the duration of the sponsorship approval, the other is the linked lapse of approval of the nomination. So a nomination will not last 12 months if the sponsorship lapses more than 3 months before the nomination’s 12 month validity. Renewing a sponsorship before the existing sponsorship expires ensures that 3 months trip period for the lapse of the nomination will not occur.

 

Part 7 Review applications

 

The time limit for applications for review of refugee decisions is 28 days from the receipt of the decision provided the person is not in detention at time of refusal.

Section 408   Simplified outline of this Part

[408 inserted and amended by TAA 2015 with effect on and from 01/07/2015 - LEGEND note]

This Part provides for the review of Part 7-reviewable decisions by the Administrative Appeals Tribunal in its Migration and Refugee Division.

Part 7-reviewable decisions relate to the grant or cancellation of protection visas in some circumstances. They do not include decisions in relation to which the Minister has given a conclusive certificate.

Part 5-reviewable decisions (which relate to the grant or cancellation of visas other than protection visas in some circumstances) are reviewable in accordance with Part 5 by the Administrative Appeals Tribunal in its Migration and Refugee Division.

Some other decisions under this Act may be reviewed by the Administrative Appeals Tribunal in its General Division, including the following:

(a)    some decisions to cancel business visas;

(b)    some decisions relating to migration agents;

(c)    some decisions relating to deportation, protection visas and the refusal or cancellation of visas on character grounds.

Fast track reviewable decisions are reviewable by the Immigration Assessment Authority under Part 7AA of this Act.  These are decisions to refuseprotection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012.   

 

Again in a complex system here is the law –

 

Section 412   Application for review of Part 7-reviewable decisions

[412] (1)      An application for review of a Part 7-reviewable decision must:

(a)      be made in the approved form; and

(b)      be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

(c)      be accompanied by the prescribed fee (if any).

[412] (2)      An application for review may only be made by the non-citizen who is the subject of the primary decision.

[412] (3)      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.

[412] (4)      Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 7-reviewable decisions-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

 

Similar to how s 347 works, it is the regulations which set the actual time limits which are as follows :

 

Reg 4.31      Time for lodgement of application with Tribunal

[4.31] (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 Part 7-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.

[4.31] (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  Part 7-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 the limitation of 7 working days for anyone in detention at time of the decision. Only onshore applicants can apply for review.

 

Here is what a Part 7 -reviewable decision means (and does not mean) :

 

Section 411   Definition of Part 7 Reviewable Decision

    

[411] (1)….

 

(b)….

(c)   a decision to refuse to grant a protection visa, other than a decision that was made relying on:

    (i)   subsection 5H(2), or 36(1B) or (1C) [substituted by Act No. 135 of 2014 with effect on and from 16/12/2014 - application see item 28 of Pt 4 of Sch 5 of that Act - LEGEND note]   ; or

    (ii)    repealed ; or

    (iii)    paragraph 36(2C)(a) or (b);

 

(d)   a decision to cancel a protection visa, other than a decision that was made because of:

(i)   subsection 5H(2) or 36(1C); or

(ii)    an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

(iii)    paragraph 36(2C)(a) or (b).

 

[411] (2)      The following decisions are not Part 7-reviewable decisions:

(aa)    any decision to cancel a protection visa that is made personally by the Minister; effect on and from 11/12/2014
 (a)      decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made;

(b)      decisions in relation to which the Minister has issued a conclusive certificate under subsection (3).

(c)      fast track decisions.

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

(a)      it would be contrary to the national interest to change the decision; or

(b)      it would be contrary to the national interest for the decision to be reviewed.

 

Part 7AA — Fast track review process in relation to certain protection visa decisions

 

Section 473BA   Simplified outline of this Part

[473BA amended by TAA 2015 with effect on and from 01/07/2015 - 473BA inserted by Act No. 135 of 2014 with effect on and from 18/04/2015 - application see items 27 and 28 of Pt 2 of Sch 4 to Act No. 135 of 2014 - LEGEND note]

This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.

Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.

Fast track reviewable decisions must be referred by the Minister to the Immigration Assessment Authority as soon as reasonably practicable after a decision is made. A person cannot make an application for review directly to theImmigration Assessment Authority.

Decisions to refuse to grant protection visas to fast track applicants are generally not otherwise reviewable under this Act, although some decisions are reviewable by the Administrative Appeals Tribunal.

The Immigration Assessment Authority consists of the President of the Administrative Appeals Tribunal, the head of the Migration and Refugee Division of the Tribunal, the Senior Reviewer and other Reviewers. The President and that Division head are responsible for the overall administration and operation of the Immigration Assessment Authority. The Senior Reviewer is appointed by the President or that Division head. The Senior Reviewers [sic] and other Reviewers are engaged under the Public Service Act 1999.

In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Immigration Assessment Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing.

The Immigration Assessment Authority may affirm a referred decision or may remit the decision for reconsideration in accordance with directions.

The Immigration Assessment Authority may give directions restricting the disclosure of information. There are also specific requirements for the giving and receiving of documents.

Barbara Davidson