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Thursday, 21 June 2007
Page: 191


Senator LUDWIG (6:47 PM) —The incorporated speech read as follows—

The Migration (Sponsorship Fees) Bill 2007 rectifies a relatively minor oversight in the drafting of the Migration Regulations that took place back in 1997. This error resulted in fees being collected for applications to sponsor temporary entry visas without there being a technical legal basis for the collection of those fees.

The Migration Regulations have only very recently been amended to fix this problem so that the collection of the fees in the future is valid. However, this bill is needed to clarify that those fees paid and collected in the past are taken to have been lawfully collected.

This very short bill provides that if a fee was paid for the sponsorship of an applicant for a temporary visa; and

(a)   the application was made on or after 1 May 1997 and before 24 May 2007; and

(b)   the fee was purportedly paid under regulation 5.38 of the Migration Regulations 1994,

then that fee is taken to have been payable at the time the fee was paid

It is a requirement for some temporary visas that the applicant be sponsored. However, in order to sponsor an applicant, the aspiring sponsor must apply to the Department of Immigration and Citizenship to be approved as sponsors for this purpose. Since 1989, the Department has required the payment of a fee for the lodgement of the application to have your status as a sponsor approved.

There appears to have been two sets of circumstances in which fees were invalidly collected purportedly pursuant to regulation 5.38.

The first situation is due to the failure to clarify that no sponsorship fee will be charged under regulation 5.38 where the visa application itself is not subject to either fees or charges. It was important that these two words “or charges” be included.

On 1 May 1997, the Migration Visa (Application Charge) Act 1997 came into effect. This Act introduced the ‘visa application charge’. Prior to this, the Migration Act 1958 and the Migration Regulations 1994 had referred to ‘visa application fees’. While amendments were made to the Migration Regulations to implement this change in terminology from ‘fees’ to ‘charges’, regulation 5.38 was overlooked.

Hence, up until recently, regulation 5.38 referred to the situation where, if an application for a visa is not subject to a fee under these Regulations, then no fee is payable for a sponsorship application in respect of that application.

Regulation 5.38 has recently been amended to include a reference to ‘visa application charge’ to now say:

If an application for a visa is not subject to a visa application charge, or a fee under these Regulations, no fee is payable for seeking to be approved as a sponsor in respect of that application.

So, this bill validates the previous collection of sponsorship fees for which an application charge was not itself applicable.

The second circumstance where fees were technically unlawfully collected between 1 May 1997 and 24 May 2007 was where a gap opened up between what the usual course of practice was and when technically fees were payable under the Migration Regulations.

That standard of practice, according to the Minister’s Second Reading Speech for this bill, is that a potential sponsor will apply to the Department of Immigration to be approved as a sponsor. The visa applicant will then lodge the visa application after the sponsorship status has been approved in order to avoid losing money on an application where the sponsor would not have been approved, and so the visa application would have been knocked back on that basis.

However, regulation 5.38 stipulated certain conditions under which the sponsorship fee was payable. It stated that the fee was payable when ‘the sponsor is a person or organisation in Australia who, or which, lodges the application on behalf of the applicant’. The regulation also referred to the relevant visa application already being ‘lodged’. Hence, the sponsorship fee was payable only where the visa application had already been lodged and also only when the sponsor themselves lodge the visa application on behalf of the applicant.

Therefore, there has been a discrepancy between what was actually presumed to be allowed under the regulations and what the regulations technically allowed. So, sponsorship fees have been collected without any specific legal basis for the collection of that fee.

The regulation was recently amended (on 13 April 2007) to rectify this problem. It now simply states that, with respect to sponsorship of an applicant applying for certain types of temporary visas, a fee is payable for seeking to be approved as a sponsor.

Hence, the bill retrospectively validates the collection of those fees between 1 May 1997 and 24 May 2007 (when the regulations were changed to allow the fees to be collected).

Labor supports the bill. It is merely a technical amendment to validate the collection of fees in the past that, due to an oversight in drafting the regulations, were not technically payable under the regulations.

The mistake is rather minor. The Minister has been upfront about the oversight and the unlawful collection of these fees.