MIGRATION AMENDMENT (VISA APPLICATION CHARGE AND RELATED MATTERS NO. 2) REGULATION 2013 (SLI NO 253 OF 2013) EXPLANATORY STATEMENT

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MIGRATION AMENDMENT (VISA APPLICATION CHARGE AND RELATED MATTERS NO. 2) REGULATION 2013 (SLI NO 253 OF 2013)

EXPLANATORY STATEMENT

Select Legislative Instrument No. 253, 2013

Issued by the Minister for Immigration and Border Protection

Migration Act 1958

Migration Amendment (Visa Application Charge and Related Matters No. 2) Regulation 2013

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 the provisions of the Act in Attachment A.

The purpose of the Migration Amendment (Visa Application Charge and Related Matters No. 2) Regulation 2013 ('the Regulation') is to amend the Migration Regulations 1994 ('the Principal Regulations') to:

* omit remaining references in the Principal Regulations to 'concessional competent English', as a consequence of that term being omitted from the Principal Regulations by the Migration Amendment Regulation 2012 (No. 2). This amendment does not practically affect visa applicants as a Subclass 457 (Temporary Work (Skilled)) visa holder has never been required to demonstrate the English level of 'concessional competent English' under regulation 2.72, in order to obtain a licence, registration or membership that is mandatory to perform the visa holder's nominated occupation;

* omit references to 'subregulation 2.87(2)' in subregulations 2.87(2A), (3) and (4) as a consequence of Migration Amendment Regulation 2013 (No.5) which repealed subregulations 2.87(1) and (2) and substituted subregulations 2.87(1), (1A) and (1B) in their place. This amendment does practically affect visa applicants as it corrects typographical errors made by the Migration Amendment Regulation 2013 (No.5);

* correct a typographical error in paragraph 1221(2)(b) of Schedule 1 (table item 1) so that it refers to the 'Contributory Parent (Temporary) (Class UT) visa' instead of the 'Contributory Aged Parent (Temporary) (Class UU) visa'. The amendment applies retrospectively in relation to a dependent child of an applicant for a Contributory Parent (Temporary) (Class UT) visa and (Class UU) visa. However, the retrospectivity of the amendment does not offend subsection 12(2) of the Legislative Instruments Act 2003 as, firstly, the amendment is financially advantageous to applicants for a Class UT visa who would be liable to pay a lower second instalment visa application charge. Secondly, the department has not identified any applicants for a Class UU visa who would be disadvantaged by this amendment; and

* correct a typographical error in sub-subparagraph 1130A(2)(a)(i)(A) so that an applicant who made a valid application for an Aged Parent (Residence) (Class BP) visa before 1 July 2003 and withdrew that application at the same time as making the application for the Contributory Aged Parent (Residence) (Class DG) visa, is liable for a nil first instalment of the visa application charge.

Details of the Regulation are set out in Attachment C.

A Statement of Compatibility with Human Rights has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement's overall assessment is that the Regulation is compatible with human rights because the amendments are technical in nature only and do not substantively affect individuals' rights or interests. A copy of the Statement is at Attachment B.

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

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulation commences on 23 November 2013 except for Schedule 1, item 6 of the Regulation. Schedule 1, item 6 relates to the correct second instalment visa application charge that is payable by a Contributory Parent (Temporary) (Class UT) visa applicant and is taken to have commenced on 1 July 2013.

ATTACHMENT A

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, the following provisions may apply:

* Subsection 5(1) of the Act, which provides that the term "prescribed" means prescribed by the Migration Regulations 1994 ('the Principal Regulations');

* paragraph 5(2)(b) of the Act, which provides that a person has functional English at a particular time if the person provides the Minister with prescribed evidence of the person's English language proficiency;

* subsection 31(3) of the Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided by sections 32, 36, 37, 37A or 38B but not by sections 33, 34, 35, 38 or 38A of the Act);

* subsection 45B(1) of the Act, which provides that the amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application;

* subsection 45C(1) of the Act, which provides that the regulations may:

o provide that visa application charge may be payable in instalments; and

o specify how those instalments are to be calculated; and

o specify when instalments are payable;

* subsection 45C(2) of the Act, which relevantly provides in part that the regulations may also:

o make provision for and in relation to:

§ the recovery of visa application charge in relation to visa applications; or

§ the way, including the currency, in which visa application charge is to be paid; or

§ working out how much visa application charge is to be paid; or

§ the time when visa application charge is to be paid; or

§ the persons who may be paid visa application charge on behalf of the Commonwealth;

* subparagraph 65(1)(a)(iv) of the Act, which relevantly provides that, after considering a valid application for a visa, the Minister is to grant the visa if he or she is satisfied that any amount of visa application charge payable in relation to the application has been paid;

* subsection 140GB(2) of the Act, which provides that the Minister must approve an approved sponsor's nomination if prescribed criteria are satisfied;

* subsection 140GB(3) of the Act, which provides that the regulations may establish a process for the Minister to approve an approved sponsor's nomination.

* subsection 140GB(4) of the Act, which provides that different criteria and different processes may be prescribed for:

o different kinds of visa (however described); and

o different classes in relation to which a person may be approved as a sponsor.

* subsection 140H(1) of the Act, which provides that a person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations;

* subsection 140H(5) of the Act, which provides that sponsorship obligations must be satisfied in the manner (if any) and within the period (if any) prescribed by the regulations; and

* subsection 140H(6) of the Act, which provides that different kinds of sponsorship obligations may be prescribed for:

o different kinds of visa (however described); and

o different classes in relation to which a person may be, or may have been, approved as a sponsor.

* paragraph 504(1)(a) of the Act, which provides that the regulations may provide for the charging and recovery of fees in respect of any matter under the Act or the regulations.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Amendment (Visa Application Charge and Related Matters No. 2) Regulation 2013

Overview of the Legislative Instrument

This Legislative Instrument amends the Migration Regulations 1994 ('the Principal Regulations') to administer several technical amendments.

Amendment to omit references to 'concessional competent English' in the Principal Regulations and associated transitional provisions

Regulation 2.72 (in addition to section 140GB of the Migration Act 1958 ('the Act'), and regulation 2.73) sets out the process for nominating an occupation in relation to the holder of, or applicant or proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa.

Currently, under subparagraph 2.72(10)(g)((ii), where a holder of a Subclass 457 (Temporary Work (Skilled)) visa would be required to hold a licence, registration or membership that is mandatory to perform the nominated occupation, the visa holder would need to demonstrate that he or she has competent English, proficient English, concessional competent English or superior English. The standard of English required is at least the standard required for the grant of the licence registration and membership.

The Migration Amendment Regulation 2012 (No. 2) previously omitted the definition of 'concessional competent English' from the Principal Regulations. However, references to 'concessional competent English' were incorrectly inserted into the following provisions of the Principal Regulations:

* subparagraph 2.72(10)(g)(ii); and

* paragraph 2.72(10)(g)(note); and

* subparagraph 457.223(4)(ea)(ii); and

* paragraph 457.223(4)(ea) (note).

The amendments clarify that the English levels that can be attained are 'competent English', 'proficient English' or 'superior English'. 'Concessional competent English' is not an available English level.

Further amendments to the Principal Regulations, known as transitional provisions, determine how the amendments to regulation 2.72 and paragraph 457.223(4)(ea) are to operate in relation nominations and applications made, but not finally determined, before 23 November 2013.

The transitional provisions provide that the amendments to regulation 2.72 apply in relation to a nomination under subsection 140GB(1) of the Act:

* made, but not finally determined, before 23 November 2013; or

* made on or after 23 November 2013.

The amendments to paragraph 457.223(4)(ea) apply in relation to a subclass 457 (Temporary Work (Skilled)) visa application:

* made, but not finally determined, before 23 November 2013; or

* made on or after 23 November 2013.

Amendments to omit reference to subregulation 2.87(2) in subregulations 2.87(2A), 2.87(3) and 2.87(4)

Previously, regulation 2.87 prevented a sponsor from recovering costs related to becoming a sponsor, and costs related to the recruitment of the sponsored person or prospective sponsored person, from a sponsored person. However, at that time, there were no provisions that prevented a person from being a sponsor, or varying the term of their approval as a sponsor, if they recovered costs from a sponsored person. In addition, regulation 2.87 did not adequately prevent recovery of costs by sponsors who engaged the services of a third party.

The Migration Amendment Regulation 2013 (No. 5) omitted subregulation 2.87(2) from the Principal Regulations, substituting subregulations 2.87(1A) and (1B) in its place. Subregulations 2.87(1A) and (1B) strengthened the previous legislative framework by broadening the scope under regulation 2.87 to cover, in addition to cost recovery related actions, any actions that result in the transfer of certain costs to another person or the payment of certain costs by another person. Costs include, for example, migration agent costs associated with the person becoming an approved sponsor or being an approved sponsor. The purpose behind this amendment was to ensure that the sponsor is solely responsible for certain costs.

Due to the removal of subregulation 2.87(2) from the Principal Regulations, it was necessary to make consequential amendments to other provisions that refer to subregulation 2.87(2). The amendments remove references to subregulation 2.87(2) in subregulations 2.87(2A), (3) and (4) and substitute those references with subregulations 2.87(1A) and (1B).

Amendment to remedy typographical error in sub-subparagraph 1130A(2)(a)(i)(A)

Sub-subparagraph 1130A(2)(a)(i)(A) relevantly provides that the amount of the first instalment of a visa application charge is nil for an applicant for a Contributory Aged Parent (Residence) (Class DG) visa who:

* made a valid application for an Aged Parent (Residence) (Class BP) visa before 1 July 2013; and

* withdrew that application at the same time as making the application for the Contributory Aged Parent (Residence) (Class DG) visa.

When this sub-subparagraph was inserted by the Migration Amendment (Visa Application Charge and Related Matters) Regulation 2013 the incorrect date of

'1 July 2013' was inadvertently inserted instead of the correct date, '1 July 2003'.

The amendment to sub-subparagraph 1130A(2)(a)(i)(A) corrects this error by omitting the reference to '1 July 2013' and substituting that reference with '1 July 2003'.

Amendment to remedy typographical error in paragraph 1221(2)(b)

Paragraph 1221(2)(b) prescribes the amount of second instalment of visa application charge payable by an applicant before the grant of a Contributory Parent (Temporary) (Class UT) visa.

Currently, paragraph 1221(2)(b) of Schedule 1 (table item 1) incorrectly refers to 'Contributory Aged Parent (Temporary) (Class UU)' visa when it should instead refer to 'Contributory Parent (Temporary) (Class UT)' visa.

The amendments to paragraph 1221(2)(b) correct this error by omitting the reference to 'Contributory Aged Parent (Temporary) (Class UU)' and substituting that reference with 'Contributory Parent (Temporary) (Class UT)'.

Human rights implications

The Department of Immigration and Border Protection has considered the amendments against the seven key international human rights treaties. As the amendments are technical in nature only and do not substantively affect individuals' rights or interests, Australia's obligations under the seven core international treaties are not engaged.

Conclusion

The regulation amendments are compatible with human rights insofar as the rights articulated in the seven core human rights treaties are not engaged.

ATTACHMENT C

Details of the Migration Amendment (Visa Application Charge and Related Matters No. 2) Regulation 2013

Section 1 - Name of Regulation

This section provides that this Regulation is the Migration Amendment (Visa Application Charge and Related Matters No. 2) Regulation 2013 ('the Regulation').

Section 2 - Commencement

The table in section 2 provides information on the commencement of different parts of the Regulation. Items 1, 2 and 4 of the table provide that:

* Sections 1 to 4; and

* Schedule 1, items 1 to 5; and

* Schedule 1, items 7 to 9;

of the Regulation commences on 23 November 2013.

Item 3 of the table provides that Schedule 1, item 6 is taken to have commenced on

1 July 2013.

The purpose of this section is to provide for when the amendments made by the Regulation commence.

Section 3 - Authority

This section provides that the Regulation is made under the Migration Act 1958 ('the Act').

The purpose of this section is to set out the Act under which the Regulation is made.

Section 4 - Schedules(s)

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

The purpose of this section is to provide for how the amendments in this Regulation operate.

Schedule 1 - Amendments

Item 1 - subparagraph 2.72(10)(g)(ii)

This item omits the term 'concessional competent English' from subparagraph 2.72(10)(g)(ii) in Part 2A of the Migration Regulations 1994 (the 'Principal Regulations').

Currently, under subparagraph 2.72(10)(g)(ii), where a holder of a Subclass 457 (Temporary Work (Skilled)) visa ('Subclass 457 visa') would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, the holder would need to demonstrate that he or she has competent English, proficient English, concessional competent English or superior English, of at least the standard required by the grant (however described) of the licence registration and membership. The effect of this amendment is to clarify that the English levels that a holder of a Subclass 457 visa would need to demonstrate are competent English, proficient English or superior English. 'Concessional competent English' is not one of the English levels set out in subparagraph 2.72(10)(g)(ii).

This amendment is consequential to amendments made by the Migration Amendment Regulation 2012 (No. 2), which omitted the definition of 'concessional competent English' from regulation 1.03 in Part 1 of the Principal Regulations and repealed regulation 1.15E, which set out the circumstances in which a person had 'concessional competent English'.

Item 2 - paragraph 2.72(10)(g) (note)

This item omits the term 'concessional competent English' from the note following paragraph 2.72(10)(g) in Part 2A of the Principal Regulations.

The effect of this amendment is to clarify that 'concessional competent English' is not an English level available under the Principal Regulations.

This amendment is consequential to the amendment made by the Migration Amendment Regulation 2012 (No. 2), which omitted the definition of 'concessional competent English' from regulation 1.03 in Part 1 of the Principal Regulations and repealed regulation 1.15E which set out the circumstances in which a person had 'concessional competent English'.

Item 3 - subregulation 2.87(2A)

This item omits 'subregulation (2)' in subregulation 2.87(2A) and substitute 'subregulations (1A) and (1B)'.

The effect of this amendment is to correct a typographical error in this subregulation.

This amendment is consequential to the amendments made by the Migration Amendment Regulation 2013 (No.5), which repealed subregulations 2.87(1) and (2) and substituted subregulations 2.87(1), (1A) and (1B) in their place.

Item 4 - subregulations 2.87(3) and (4)

This item omits 'subregulations (2) and (2A)' in subregulations 2.87(3) and (4) and substitutes 'subregulations (1A), (1B) and (2A)'.

The effect of this amendment is to correct a typographical error in these subregulations.

Item 5 - sub-subparagraph 1130A(2)(a)(i)(A) of Schedule 1

This item omits "1 July 2013" and substitutes "1 July 2003" in sub-subparagraph 1130A(2)(a)(i)(A) of Schedule 1.

The effect of this amendment is to correct a typographical error in this sub-subparagraph.

Sub-subparagraph 1130A(2)(a)(i)(A) of Schedule 1 to the Principal Regulations was amended by item 40 in Schedule 1 to the Migration Amendment (Visa Application Charge and Related Matters) Regulation 2013. When that amendment was made, it was intended that the relevant wording of previous sub-subparagraph 1130A(2)(a)(i)(A) would be retained, but the date '1 July 2013' was erroneously inserted in place of 'the day on which this item commences'.

The amendments to sub-subparagraph 1130A(2)(a)(i)(A) correct this error by omitting

'1 July 2013' and substituting it with '1 July 2003'. This amendment ensures that sub-subparagraph 1130A(2)(a)(i)(A) applies to an applicant who made a valid application for an Aged Parent (Residence) (Class BP) visa before 1 July 2003, which was the intention and operation of this sub-subparagraph prior to the Migration Amendment (Visa Application Charge and Related Matters) Regulation 2013.

Item 6 - paragraph 1221(2)(b) of Schedule 1 (table item 1)

This item repeals table item 1 in paragraph 1221(2)(b) of Schedule 1 and substitutes table items 1 and 1A.

New item 1 provides that an applicant who:

* was less than 18 at the time of application; and

* is a dependent child of an applicant for a Contributory Parent (Temporary) (Class UT) visa; and

* applied during the period that began on 1 July 2013 and ended on 31 August 2013;

is to pay a second instalment visa application charge of $1 825.

New item 1A provides that an applicant who:

* was less than 18 at the time of application; and

* is a dependent child of an applicant for a Contributory Parent (Temporary) (Class UT) visa; and

* applied on or after 1 September 2013

is to pay a second instalment visa application charge of $2 095.

The effect of this item is to correct a typographical error inserted by Migration Amendment (Visa Application Charge and Related Matters) Regulation 2013 (the earlier amending regulation).

In item 60 of Schedule 1 to the earlier amending regulation, a table was inserted in paragraph 1221(2)(b) setting out the amount of the second instalment of visa application charge payable by an applicant. In subitem 1(b) of the table, reference was made to a 'Contributory Parent (Temporary) (Class UU) visa' when that reference should have been to a 'Contributory Parent (Temporary) (Class UT) visa', because this was the visa that was referred to in

sub-subparagraph 1221(2)(b)(i)(A) prior to the earlier amending regulation being made.

The earlier amending regulation commenced on 1 July 2013. Consequently, from that date, item 1 of the table in paragraph 1221(2)(b) no longer applied to a dependent child of an applicant for a Contributory Parent (Temporary) (Class UT) visa (a UT applicant). Instead, UT applicants fell into the category of "any other applicant" for the purposes of the table, meaning that item 3 of the table applied to them from 1 July 2013. Accordingly, from 1 July 2013 to 31 August 2013, UT applicants were liable to pay a second instalment visa application fee of $25 330 rather than a second instalment visa application fee of $1 825. On 1 September 2013, when the Migration Amendment (Visa Application Charge) Regulation 2013 commenced, these figures were increased to $29 130 and $2 095 respectively. If the commencement of item 6 of Schedule 1 to the Regulation were prospective rather than retrospective, UT applicants would bear this financial disadvantage from 1 July 2013 until 23 November 2013. On this basis, the retrospectivity of item 6 does not offend subsection 12(2) of the Legislative Instruments Act 2003 as it is financially advantageous to UT applicants.

The retrospectivity of item 6 of Schedule 1 to the Regulation also applies in relation to a dependent child of an applicant for a Contributory Parent (Temporary) (Class UU) visa (a UU applicant). This cohort of visa applicants unintentionally benefited from the error in the earlier amending regulation because, from 1 July 2013, item 1 of the table applied to the cohort rather than item 3. However, a UU applicant could only take advantage of the error in circumstances that would be highly unlikely. These circumstances are that:

* the UU applicant's parent, also an applicant for a UU visa, was coincidentally able to satisfy the application criteria for a Contributory Parent (Temporary) (Class UT) Subclass 173 visa; and

* the UU applicant was able to satisfy the secondary criteria for a Subclass 173 visa; and

* the UU applicant realised that he or she could financially benefit from the error in the earlier amending regulation.

That department has not identified any UU applicants to whom the retrospectivity of item 6 of the Regulation would offend subsection 12(2) of the Legislative Instruments Act 2003.

The amendments ensure that the Contributory Parent (Temporary) (Class UT) visa is correctly referred to in subitem 1(b) of the table in paragraph 1221(2)(b).

New table item 1 in paragraph 1221(2)(b) provides the correct second instalment of visa application charge payable by a UT applicant who applied from 1 July 2013 to 31 August 2013.

New table item 1A provides the correct second instalment of visa application charge payable by a UT applicant who applied on or after 1 September 2013.

Item 7 - subparagraph 457.223(4)(ea)(ii)

This item omits the term 'concessional competent English' from subparagraph 457.223(4)(ea)(ii) of Schedule 2 to the Principal Regulations.

This amendment is consequential to the amendments made by the Migration Amendment Regulation 2012 (No. 2), which omitted the definition of 'concessional competent English' from regulation 1.03 in Part 1 of the Principal Regulations and repealed regulation 1.15E, which set out the circumstances in which a person had 'concessional competent English'. The amendment ensures that there is no reference to 'concessional competent English' in subparagraph 457.223(4)(ea)(ii) of the Principal Regulations.

Item 8 - paragraph 457.223(4)(ea) of Schedule 2 (note)

This item omits the term 'concessional competent English' from the note following paragraph 457.223(4)(ea) of Schedule 2 to the Principal Regulations.

This amendment is consequential to the amendments made by the Migration Amendment Regulation 2012 (No. 2), which omitted the definition of 'concessional competent English' from regulation 1.03 in Part 1 of the Principal Regulations and repealed regulation 1.15E, which set out circumstances in which a person had 'concessional competent English'. The amendment ensures that reference to 'concessional competent English' is not made in the note following paragraph 457.223(4)(ea) of Schedule 2 to the Principal Regulations.

Item 9 - At the end of Schedule 13

This item inserts a new Part 23 into Schedule 13 of the Principal Regulations to deal with transitional arrangements in respect of amendments made by this Regulation.

The heading of new Part 23 is 'Amendments made by the Migration Amendment (Visa Application Charge and Related Matters No. 2) Regulation 2013.'

New Part 23 inserts new clause 2301, the title of which is 'Operation of Schedule 1'.

Subclause 2301(1) provides that the amendments of these Regulations made by items 1 and 2 of Schedule 1 to the Migration Amendment (Visa Application Charge and Related Matters No. 2) Regulation 2013 apply in relation to a nomination under subsection 140GB(1) of the Act:

* made, but not finally determined, before 23 November 2013; or

* made on or after 23 November 2013.

Subclause 2301(2) provides that the amendment of these Regulations made by items 7 and 8 of Schedule 1 to the Migration Amendment (Visa Application Charge and Related Matters No. 2) Regulation 2013 apply in relation to a subclass 457 (Temporary Work (Skilled)) visa application:

* made, but not finally determined, before 23 November 2013; or

* made on or after 23 November 2013.

This amendment clarifies to whom the amendments in this Regulation apply.

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