EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 87

 

Issued by the Minister for Immigration

and Citizenship

 

 

Subject - Migration Act 1958

 

Migration Amendment Regulations 2007 (No. 2)

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the

Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

In addition, regulations may be made pursuant to:

·         subparagraph 504(1)(a)(i), which provides for the making of regulations making provision for and in relation to the charging and recovery of fees in respect of any matter under the Act or the Migration Regulations 1994 (the Principal Regulations), and

·         subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class.

 

The purpose of the Regulations is to amend the Principal Regulations to adjust the arrangements relating to sponsorship fees for certain temporary visas. In particular, the Regulations ensure that a temporary residence sponsorship fee is payable:

·        whether or not a sponsor lodges the visa application on behalf of the applicant; and

·        where a visa application is subject to a visa application charge.

Details of the Regulations are set out in Attachment A.

 

The Regulations commence on the day the Regulations are registered on the Federal Register of Legislative Instruments. In addition, the Regulations include a transitional provision to the effect that the amendments made by Schedule 1 to the Regulations apply to visa applications made on or after the commencement of the Regulations.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

 

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

 

For Schedule 1 the Office of Best Practice Regulation’s Business Compliance Cost and Competition Assessment was used to determine that there was no compliance cost to business.

 

No other consultations were conducted in relation to the Schedules to these Regulations as the amendments were considered not to have relevant implications for any external agencies or other bodies.

ATTACHMENT A

 

 

Details of the Migration Amendment Regulations 2007 (No. 2)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Amendment Regulations 2007 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day the Regulations are registered on the Federal Register of Legislative Instruments.

 

Regulation 3 – Amendment of Migration Regulations 1994

 

This regulation provides that the Migration Regulations 1994 (the Principal Regulations) are amended as set out in Schedule 1.

 

Regulation 4 – Transitional

This regulation provides that the amendments made by Schedule 1 apply in relation to an application for a visa made on or after the day on which these regulations commence.

Schedule 1 – Amendments

Item [1] – Subregulation 5.38(1)

The effect of this item is to omit existing paragraph 5.38(1)(b).

Regulation 5.38 imposes a fee for sponsorship in respect of certain visa applications. Subregulation 5.38(1) sets out the sponsorships to which regulation 5.38 applies. Paragraph 5.38(1)(b) makes it a requirement, for the application of regulation 5.38, that the sponsor lodges the application on behalf of the applicant.

The removal of paragraph (b) will allow the sponsorship fee imposed by regulation 5.38 to apply whether it is the sponsor, or the visa applicant, who lodges the visa application. This amendment will allow the fee to be imposed in a wider range of circumstances.

Item [2] - Subregulation 5.38(3)

This item inserts the words “a visa application charge, or” in subregulation 5.38(3).

Subregulation 5.38(3) provides that the sponsorship fee imposed by regulation 5.38 is not payable if the visa application is not subject to a fee under the Principal Regulations.

 

Since 1997 most visa applications have not been subject to a “fee” under the Principal Regulations but rather to a “visa application charge” payable under section 45A of the Migration Act 1958 (the Act). Section 45A was inserted on 1 May 1997 when the Visa (Application Charge) Act 1997 commenced. Section 45A provides that a non-citizen who makes an application for a visa is liable to pay a visa application charge if, assuming the charge were paid, the application would be a valid visa application.

When section 45A was inserted into the Act amendments were also made to the Principal Regulations to reflect the new concept of “visa application charge”. For example, regulation 5.36 in Division 5.7 (the name of which at the time was changed from “Fees” to “Charges and Fees”) was amended to add a new subregulation 5.36(4). The new subregulation defines “fee” for the purposes of that regulation to mean either an instalment of the visa application charge or a fee payable under the Principal Regulations.

In what was clearly an oversight at the time, no similar amendment was made to regulation 5.38.

This amendment therefore rectifies this oversight by ensuring that the sponsorship fee imposed by regulation 5.38 is payable if the visa application is subject to a visa application charge, or a fee payable under the Principal Regulations.