2004 - 2005 - 2006 - 2007

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

MIGRATION (SPONSORSHIP FEES) BILL 2007

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Citizenship,

the Hon Kevin Andrews MP)

 

 

 

Migration (SPONSORSHIP FEES) BILL 2007

 

OUTLINE

1.       The Migration (Sponsorship Fees) Bill 2007 (‘the Bill’) validates the collection of sponsorship fees for certain temporary entry visas under regulation 5.38 of the Migration Regulations 1994 (‘the Regulations’) from 1 May 1997 and before 24 May 2007.

2.       On 1 May 1997 the Visa (Application Charge) Act 1997 took effect and introduced a new concept of a ‘visa application charge’.  Consequential amendments were made to the Regulations to reflect this concept.  Due to an oversight, however, no such amendment was made to regulation 5.38. Regulation 5.38 prescribes the circumstances in which a fee is payable in respect of sponsorships for certain temporary visas.  The failure to insert a reference to ‘visa application charge’ into regulation 5.38 meant there was no legal basis for the collection of sponsorship fees under the regulation from 1 May 1997.

3.       Regulation 5.38 also provided that temporary residence sponsorship fees were payable only where the sponsor lodged the visa application on behalf of the visa applicant. This did not reflect the common practice of visa applicants lodging their own visa applications once their sponsor in Australia had been approved. This practice was established as it was advantageous to applicants, who did not have to pay a visa application fee if the sponsorship was rejected.

4.       On 13 April 2007 the Regulations were amended to include a reference to ‘visa application charge’ in subregulation 5.38(3), and to remove paragraph 5.38(1)(b) to ensure that sponsorship fees are payable whether or not sponsors lodge the application on behalf of the applicant.  It is anticipated that further amendments will be made to regulation 5.38 on 23 May 2007, to commence on 24 May 2007. These amendments will ensure that the fee is payable regardless of who lodges the visa application and when that application is lodged.  The effect of these two sets of amendments will be to  ensure that the sponsorship fee can be lawfully collected.

5.       The Bill will validate the collection of sponsorship fees under regulation 5.38 in relation to visa applications made on or after 1 May 1997 and before 24 May 2007.  It will do so by providing that the fee is taken to have been payable at the time it was paid.

FINANCIAL IMPACT STATEMENT

6.       The proposed Bill will have no impact on the financial position of the Commonwealth.  Current budget estimates of revenue are based on the assumption that the sponsorship fee is paid with each sponsorship.  Similarly, budget funding for the Department of Immigration and Citizenship takes into account the cost of processing the sponsorships.

 

NOTES ON INDIVIDUAL CLAUSES

Part 1 - Preliminary

Clause 1          Short title

The short title by which the Act may be cited is the Migration (Sponsorship Fees) Act 2007 .

Clause 2          Commencement

All sections of the Act will commence on the day on which the Act receives the Royal Assent.

Clause 3          Fees payable

On 1 May 1997 the Visa (Application Charge) Act 1997 took effect and introduced a new concept of a ‘visa application charge’.  Consequential amendments were made to the Regulations to reflect this concept.  Due to an oversight, however, no such amendment was made to regulation 5.38. Regulation 5.38 prescribes the circumstances in which a fee is payable in respect of sponsorships for certain temporary visas.  Subregulation 5.38(3) provided that no sponsorship fee was payable if no fee was payable for the visa application. The failure to insert a reference to ‘visa application charge’ into subregulation 5.38(3) meant that, as no visa application fee was payable, the sponsorship fee was being incorrectly collected.

Subregulations 5.38(1) and (2) also provided that sponsorship fee was payable only where the sponsor lodges the visa application on behalf of the visa applicant. This did not reflect the common practice which had arisen of visa applicants lodging their own visa applications, after their sponsor in Australia had been approved. This practice was established as it was advantageous to applicants, who did not have to pay a visa application fee if the sponsorship was not approved. However the failure of the regulations to reflect this practice also meant that the sponsorship fee was not payable, and was being incorrectly collected.

On 13 April 2007 the Regulations were amended to include a reference to ‘visa application charge’ in subregulation 5.38(3), and to amend subregulation 5.38(1) to ensure that sponsorship fees are payable whether or not sponsors lodge the application on behalf of the applicant.  It is anticipated that further amendments will be made to regulation 5.38 on 23 May 2007, to commence on 24 May 2007. These amendments will ensure that the fee is payable regardless of who lodges the visa application and when that application is lodged.  The effect of these two sets of amendments is to ensure that the current practice (which allows visa applicants to apply after their sponsor has been approved) can continue and the sponsorship fee can be lawfully collected.

The purpose of clause 3 to the bill is to validate the past collection of fees under regulation 5.38 of the Regulations. It does so by providing that fees purportedly paid under regulation 5.38 for sponsorship in respect of visa applications made on or after 1 May 1997 and before 24 May 2007, are taken to have been payable at the time the fee was paid.

Subclause 3(1) provides that section 3 applies to fees paid for the sponsorship of an applicant for a temporary visa if the application for the visa was made on or after 1 May 1997 and before 24 May 2007, and the fee was purportedly paid under regulation 5.38.

Subclause 3(2) provides that a fee covered by subclause 3(1) is taken to have been payable at the time the fee was paid.

The operation of clause 3 is limited to visa applications made after 1 May 1997 as it was from this date that the collection of the fees under regulation 5.38 was clearly unlawful as a result of the failure to make the technical amendment to refer to the new concept of a visa application charge.  It covers applications made before 24 May 2007, as it is anticipated that on 24 May 2007 the regulations will be amended to ensure that the fee can be lawfully collected.