ATTACHMENT A

 

 

AUTHORISING PROVISIONS

 

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:

 

*         subparagraph 504(1)(a)(i) of the Act, which relevantly provides that the Governor-General may make 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 Regulations'), including the fees payable in connection with the review of decisions made under the Act or the Regulations, whether or not such review is provided for by or under the Act.

 

*         paragraph 504(1)(b) of the Act, which provides that the Governor-General may make regulations making provision for the remission, refund or waiver of fees of a kind referred to in paragraph 504(1)(a) or for exempting persons from the payment of such fees.

 

*         paragraph 504(1)(e) of the Act, which provides that the Governor-General may make regulations making provision for and in relation to:

 

o   the giving of documents to;

o   the lodging of documents with; or

o   the service of documents on;

 

the Minister, the Secretary or any other person or body, for the purposes of the Act.

 

*         subsection 31(1) of the Act, which provides that there are to be prescribed classes of visas.

 

*         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 that subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A of the Act).

 

*         subsection 40(1) of the Act, which provides that the Regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

 

*         section 45A of the Act, which provides that a non-citizen who makes an application for a visa is liable to pay visa application charge ('VAC') if, assuming the charge were paid, the application would be a valid visa application.

 

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

 

*         subsection 45B(2) of the Act, which provides that the amount prescribed in relation to an application may be nil.

 

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

 

o   provide that VAC 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 provides that the Regulations may also:

 

o   make provision for and in relation to:

 

§  the recovery of VAC in relation to visa applications; or

§  the way, including the currency, in which VAC is to be paid; or

§  working out how much VAC is to be paid; or

§  the time when VAC is to be paid; or

§  the persons who may be paid VAC on behalf of the Commonwealth; or

 

o   make provision for the remission, refund or waiver of VAC or an amount of VAC; or

o   make provision for exempting persons from the payment of VAC or an amount of VAC; or

o   make provision for crediting VAC, or an amount of VAC, paid in respect of one application against VAC payable in respect of another application.

 

*         subsection 46(1) of the Act, which relevantly provides that, subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

 

o   it is for a visa of a class specified in the application; and

o   it satisfies the criteria and requirements prescribed under this section; and

o   subject to the Regulations providing otherwise, any VAC that the Regulations require to be paid at the time when the application is made, has been paid; and

o   any fees payable in respect of it under the Regulations have been paid.

 

*         subsection 46(2) of the Act, which provides that, subject to subsection 46(2A), an application for a visa is valid if:

 

o   it is an application for a visa of a class prescribed for the purposes of this subsection; and

o   under the Regulations, the application is taken to have been validly made.

 

*         subsection 46(3) of the Act, which provides that the Regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

 

*         subsection 46(4) of the Act, which provides that, without limiting subsection 46(3), the Regulations may also prescribe:

 

o   the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

o   how an application for a visa of a specified class must be made; and

o   where an application for a visa of a specified class must be made; and

o   where an applicant must be when an application for a visa of a specified class is made.

 

 

ATTACHMENT B

 

 

STATEMENT OF COMPATIBILITY FOR A BILL OR LEGISLATIVE INSTRUMENT THAT RAISES HUMAN RIGHTS ISSUES

 

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) Regulation 2013

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

*         Schedule 1 - Amendment of Migration Regulations 1994

 

Overview of the Legislative Instrument

 

VPT Amendments

 

This Legislative Instrument seeks to amend Divisions 2.2 and 2.2A of Part 2 and Schedule 1 to the Migration Regulations 1994 ('the Regulations') to alter the existing visa application charge ('VAC') regime by requiring certain visa applicants to pay a number of extra charges at the time of application, in addition to the existing first instalment of the VAC. Applicants will have to pay the extra charges in order to make a valid application for a visa.

 

The purpose of these changes is to close the gap between visa access charges and the estimated costs of administering visas.  The new charging regime is in line with comparable structures in other countries.  It safeguards Australia's international competitiveness as visa pricing will be more comparable with other similar nations.  At the same time, these changes will create a 'per application' system of charging individuals for the lodgement and processing of visa applications that will facilitate VACs that more accurately reflect the cost of processing visa applications.

 

The additional charges are:

 

Additional Applicant Charge ('AAC')

 

*         The AAC is a component of the new first instalment of VAC that applies to an applicant who combines his or her application with another application in a way permitted by relevant provisions in the Regulations.

 

*         For certain visas, applicants are permitted to combine their application with an original application either at the same time as the original application or after the original application was made but before a decision has been made.

 

*         Currently, these applicants are not required to pay a first instalment of the visa application charge.  These additional applicants will now be required to pay the AAC.

 

*         The AAC that an additional applicant must pay will depend on the kind of visa that the additional applicant applies for, and their age at the time of application.

 

*         The AAC for additional applicants who are 18 years or over is an amount of money between 50 per cent and 100 per cent of the base application charge ('BAC') for the relevant visa.

 

*         The AAC for additional applicants who are under 18 years old is approximately 25 per cent of the BAC for the relevant visa.

 

*         If the BAC for a particular visa is nil, the AACs for that visa will also be nil.

 

Subsequent Temporary Application Charge ('STAC')

 

• The STAC is a component of the new first instalment.

 

• The STAC only applies to certain kinds of substantive temporary visas.  An applicant for one of those visas is required to pay the STAC if they are in Australia at the time they make the application, and:

 

• they hold a specified kind of substantive temporary visa that they applied for when they were in Australia; or
• their last substantive visa was a specified kind of temporary visa that they applied for when they were in Australia. STAC is intended to discourage non-citizens from making serial onshore applications for substantive temporary visas in order to achieve a quasi-permanent stay in Australia without making an application for a permanent visa.

 

• The STAC is a $700 charge.

 

The Non-Internet Application Charge ('NIAC')

 

• The NIAC is a component of the new first instalment of the VAC that is intended to encourage visa applicants to make their applications using electronic means (i.e. an internet application) and to offset the cost of processing applications made through non-electronic means (i.e. paper and oral applications).  The NIAC is $80.

 

• The NIAC is only imposed once on each paper application form (including forms containing combined applications from multiple applicants) or oral application.  The NIAC only applies to visas which allow applicants to choose whether to make an application by electronic means or an application through non-electronic means.  The NIAC does not apply to visas that only allow applicants to make non-electronic applications, or to visas that only allow applicants to make electronic applications.

 

Visa Evidence Charge ('VEC') amendments

 

Subregulation 2.19A(3) of the Regulations currently exempts from having to pay the VEC for a first request for a visa label the holders of "a student visa for which the amount of visa application charge was nil on the basis that the requirement in sub-subparagraph 1222(2)(a)(i)(A), (D) or (E) of Schedule 1 was satisfied" (see item 28 of the table under subregulation 2.19A(3)).

 

The Regulations are amended so that:

 

• The holder of a Subclass 576 (AusAID or Defence Sector) visa pays nil VEC for a first request for a visa label in relation to that subclass.

 

• The holders of student visas for which the amount of visa application charge was nil on the basis that they are Defence students who have been approved by the Defence Minister to undertake full-time study pay nil VEC for a visa label.  The same applies to family members of such students.  They may be granted any of the student visas, not just a Subclass 576.

 

The Regulations currently exempt certain Subclass 403 visa holders from having to pay the VEC for the first request for a visa label (see item 12 in the table under subregulation 2.19A(3)).

 

The Regulations are amended so that:

 

• The holder of a Subclass 403 (Temporary Work (International Relations)) visa pays nil VEC for all requests for a visa label.

 

Removing 'sibling concession'

 

Under current provisions, an applicant for a child category visa who applies at the same time and place as their sibling is exempt from paying the relevant VAC.  To support the VPT amendments, the Regulations are amended to remove the concession to the VAC, which applies to siblings of applicants for child category visas (i.e. subclasses 102, 117, 802, 837 and 445).  This is to avoid an outcome that is not consistent with the intention of the new AAC for family members included on visa applications.  With the removal of the sibling concessions, siblings who apply for visas are required to pay the BAC or the AAC (as applicable) when they make their application.  This ensures that the siblings are consistently liable to pay the new visa pricing dimensions.

 

The following provisions of Schedule 1 will need to be amended:

 

• For subclass 102 and 117 visas - paragraph 1129(3)(a);

 

• For subclass 802 and 837 visas - paragraph 1220A(3)(a);

 

• For subclass 445 visas - paragraph 1215(3)(a);

 

If the sibling concessions are retained alongside the AAC there will be a financial benefit, and therefore an incentive, for parents who have more than one child to leave those children off the permanent visa application and then sponsor each child at the same time at a later date for a child category visa.  The Department is concerned that this will increase the demand for limited child category visa places.  This will result in increased visa processing costs at no extra revenue generation for the government.  It will also limit the number of child category visa places available to children of Australian citizens and permanent residents who have no other migration pathway, such as children adopted through an inter-country adoption program.

 

Additionally, the incentive to leave children off permanent visa applications is a risky migration strategy for older children as they may not be able to meet the legal requirements for the grant of a child category visa.  For example, they may no longer be taken to be a dependent child of their parent due to their age, study and/or relationship status by the time an application is lodged and assessed.  This in turn may see a significant increase in Ministerial intervention requests.

 

The removal of the sibling concession will have the effect that all primary visa applicants for a child category visa will be subject to the full child visa category VAC.

 

Ability to specify address for lodging paper applications in Australia

 

Amendments are also made to the Regulations which will allow for the future ability to remove the option for clients to lodge paper applications for certain Family program visas at onshore counters.  Instead, it will be a requirement for such paper applications to be posted/couriered to a specified address in order to be a valid application.  This will enable DIAC to respond flexibly to changing business contexts and restrict lodgements if further investigation shows that this is the best way to efficiently manage specific caseloads.

 

For each visa set out in the list below, we wish to amend Schedule 1 to the Regulations to require paper applications to be sent to an address that is specified in an instrument in writing.

 

• Class BC - Partner (Permanent) visa

 

• Class UP - New Zealand Citizen Family Relationship visa

 

• Class BS - Partner (Permanent) visa

 

• Class BT - Child visa

 

• Class BP - Aged Parent visa

 

• Class UK - Partner (Temporary) visa

 

• Class BU - Remaining Relative, Aged Dependent Relative and Carer Onshore visas

 

• Class BT - Orphan Relative visas

 

• Class DG - Contributory Aged Parent visa

 

• Class UU - Contributory Aged Parent (Temporary) visa.

 

We do not intend to specify any address at the time the amendments commence in the Regulations.  However, we require the amendments to be made in order for the ability to specify addresses to be used at some time in the future.

 

Human rights implications

 

The Department of Immigration and Citizenship ('DIAC') has considered the amendments against the seven key international human rights treaties, in particular the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.  Australia's obligations under the seven core international treaties are not engaged.

 

Conclusion

 

The legislative change in the Regulations is compatible with human rights insofar as the rights articulated in the seven core human rights treaties are not engaged.

 

The Hon. Brendan O'Connor MP, Minister for Immigration and Citizenship

 

 

ATTACHMENT C

 

 

Details of the Migration Amendment (Visa Application Charge and Related Matters) Regulation 2013

 

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Migration Amendment (Visa Application Charge and Related Matters) Regulation 2013.

 

Section 2 - Commencement

 

This section provides that the Regulation commences 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 purpose of this section is to set out the Act under which the Regulation is made.

 

Section 4 - Schedule(s)

 

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

 

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

 

Schedule 1 - Amendment of Migration Regulations 1994

 

Items [1] - [4] - Regulation 1.03

 

Items [1] to [4] insert new definitions for each of the new components of the first instalment of visa application charge ('VAC').  The insertion of these new definitions reflects the intention of creating a 'per applicant' system of charging individuals for the lodgement and processing of visa applications, by introducing a range of pricing components that are payable depending on a visa applicant's circumstances, and together form the new first instalment of VAC.

 

Item [1] - Regulation 1.03

 

This item inserts a new definition of additional applicant charge into regulation 1.03 of Part 1 of the Migration Regulations 1994 ('the Regulations').

 

The new definition provides that additional applicant charge means the charge explained in new subregulation 2.12C(4).

 

The purpose of this amendment is to set out the meaning of the term additional applicant charge, which is a component of the new first instalment of VAC.  Further explanation of the additional applicant charge, and of circumstances in which it is payable, is set out in new subregulation 2.12C(4) (see item [10] below).

 

Item [2] - Regulation 1.03

 

This item inserts a new definition of base application charge into regulation 1.03 of Part 1 of the Regulations.

 

The new definition provides that base application charge means the charge explained in new subregulation 2.12C(3).

 

This amendment makes clear that the term base application charge has the meaning set out in new subregulation 2.12C(3).  The base application charge is a component of the new first instalment of the VAC that a visa applicant has to pay, except in circumstances where the new additional applicant charge is payable instead, or no components of the first instalment of VAC are payable.  Further explanation of the base application charge, and of circumstances in which it is payable, is set out in new subregulations 2.12C(1) to (3) (see item [10] below).

 

Item [3] - Regulation 1.03

 

This item inserts a new definition of non-Internet application charge into regulation 1.03 of Part 1 of the Regulations.

 

This definition provides that non-Internet application charge means the charge explained in new subregulations 2.12C(7) to (9).

 

This amendment makes clear that the term non-Internet application charge has the meaning set out in new subregulations 2.12C(7) to (9).  The non-Internet application charge is a charge that a visa applicant has to pay as a component of the new first instalment of the VAC if the circumstances in new paragraph 2.12C(7) exist and the circumstance in new paragraph 2.12C(8) does not (see item [10] below).

 

Item [4] - Regulation 1.03

 

This item inserts a new definition of subsequent temporary application charge into regulation 1.03 of Part 1 to the Regulations.

 

This definition provides that subsequent temporary application charge means the charge explained in new subregulations 2.12C(5) and (6).

 

This amendment makes clear that the term subsequent temporary application charge has the meaning set out in new subregulations 2.12C(5) and (6).  The subsequent temporary application charge is a charge that a visa applicant has to pay as a component of the first instalment of the VAC if the circumstances in new paragraph 2.12C(5) exist (see item [10] below).

 

Item [5] - Regulation 2.07(1)

 

This item substitutes subregulation 2.07(1) in Part 2 of the Regulations.

 

New subregulation 2.07(1) provides that, for sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:

 

*         the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and

 

*         regulation 2.12C and the relevant item of Schedule 1 set out:

 

o   the VAC (if any) payable in relation to an application; and

o   the components that may be applicable to a particular application for the visa; and

 

*         the relevant item of Schedule 1 sets out other matters relating to the application.

 

The purpose of this amendment is to make clear in subregulation 2.07(1) that the VAC (if any) payable in relation to an application and the components that may be applicable to a particular application for a visa are set out in regulation 2.12C as well as the relevant item of Schedule 1.  The amendment also provides, by contrast, that the approved form (if any) to be completed by an applicant and other matters relating to the application is set out in Schedule 1.

 

This amendment is consequential to the amendments in item [10], which sets out in new regulation 2.12C the pricing components for the first instalment of VAC, and an explanation of the circumstances in which those components are or are not be payable.

 

Item [6] - Paragraph 2.08A(1)(d)

 

This item substitutes paragraph 2.08A(1)(d) and inserts new paragraph 2.08A(1)(da) into Part 2 of the Regulations.

 

These new paragraphs provide that if:

 

*         the additional applicant charge (if any) has been paid in relation to the additional applicant; and

 

*         at the time when:

 

o   the Minister has received the request; and

o   the additional applicant charge (if any) has been paid;

 

the additional applicant satisfies the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class.

 

The purpose of this amendment is to make clear that in order for an additional applicant to be taken to have made a combined application for a visa under regulation 2.08A, one of the requirements is that the additional applicant charge is paid in relation to the additional applicant.

 

It is intended that payment of the additional applicant charge can happen before or after the Minister has received the request to make a combined application under regulation 2.08A, but whichever is the case, an additional applicant is not be taken to have applied for a visa under regulation 2.08A unless the additional applicant charge is paid.

 

Item [7] Subparagraph 2.08A(1)(f)(i)

 

This item substitutes subparagraph 2.08A(1)(f)(i) under Division 2.2 of the Regulations.

 

New subparagraph 2.08(1)(f)(i) provides that the application of the additional applicant is taken to have been made on the later of:

 

*         the Minister receiving the request; and

 

*         the additional applicant charge (if any) being paid.

 

Similar to the amendments in item [6], the purpose of this amendment is to make clear that in order for an additional applicant to be taken to have made a combined application for a visa under regulation 2.08A, one of the requirements is that the additional applicant charge is paid in relation to the additional applicant.

 

It is intended that payment of the additional applicant charge can happen before or after the Minister has received the request to make a combined application under regulation 2.08A, but whichever is the case, an additional applicant is not taken to have applied for a visa under regulation 2.08A unless the additional applicant charge is paid.

 

Item [8] - Paragraph 2.08B(1)(d)

 

This item substitutes paragraph 2.08B(1)(d) and inserts new paragraph 2.08B(1)(daa) of Part 2 of the Regulations.

 

These new paragraphs provide that if:

 

*         the additional applicant charge (if any) and the subsequent temporary application charge (if any) have been paid in relation to the dependent child; and

 

*         at the time when:

 

o   the Minister has received the request; and

o   the additional applicant charge (if any) and the subsequent temporary application charge (if any) have been paid in relation to the additional applicant;

 

the dependent child satisfies the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class.

 

The purpose of substituting new paragraph 2.08B(1)(d) is to make clear that in order for a dependent child to be taken to have applied for a visa under regulation 2.08B, the additional applicant charge (if any) and the subsequent temporary application charge (if any) have to be paid in relation to the additional applicant.

 

The purpose of inserting new paragraph 2.08B(1)(da) is to make clear that in order for a dependent child to be taken to have applied for a visa under regulation 2.08B, the dependent child has to satisfy the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class at the time when the Minister has received the request and when the additional applicant charge (if any) and the subsequent temporary application charge (if any) are paid in relation to the additional applicant.

 

These new paragraphs reinforces the intention that, if an additional applicant charge and subsequent temporary applicant charge are payable, those charges have to be paid before a dependent child can be taken to have applied for a visa under regulation 2.08B.

 

Item [9] - Subparagraph 2.08B(1)(f)(i)

 

This item substitutes subparagraph 2.08B(1)(f)(i) of Part 2 of the Regulations.

 

New subparagraph 2.08B(1)(f)(i) provides that the application of the dependent child is taken to have been made on the latest of:

 

*         the Minister receiving the request; and

 

*         the additional applicant charge (if any) being paid; and

 

*         the subsequent temporary application charge (if any) being paid.

 

Similar to the amendments in item [6], the purpose of this amendment is to make clear that in order for an additional applicant to be taken to have made a combined application for a visa under regulation 2.08B, one of the requirements is that the additional applicant charge (if any) and the subsequent temporary application charge (if any) have to be paid in relation to the additional applicant.

 

It is intended that payment of the additional applicant charge and the subsequent temporary application charge can happen before or after the Minister has received the request to make a combined application under regulation 2.08B, but whichever is the case, an additional applicant is not taken to have applied for a visa under regulation 2.08B unless the additional applicant charge and the subsequent temporary application charge have been paid.

 

Item [10] - Regulation 2.12C

 

This item substitutes regulation 2.12C under Division 2.2A of the Regulations.

 

The purpose of this amendment is to explain the circumstances in which each of the new components that make up the first instalment of VAC is payable by a visa applicant.  While the exact amount of base application charge and additional applicant charge for a particular visa class is prescribed in the relevant item of Schedule 1 to the Regulations, the amount of subsequent temporary application charge and non-Internet application charge, if payable in a particular visa applicant's circumstances, is invariable and is prescribed in new regulation 2.12C.

 

Subregulation 2.12C(1)

 

New subregulation 2.12C(1) provides that, for subsection 45B(1) of the Act, the VAC (if any) in relation to an application for a visa of a class to which an item of Schedule 1 relates is the sum of:

 

*         the first instalment (which is payable when the application is made), consisting of the following components:

 

o   the base application charge or the additional applicant charge;

o   any subsequent temporary application charge;

o   any non-Internet application charge; and

 

*         the second instalment (which is payable before the grant of the visa).

 

The purpose of new subregulation 2.12C(1) is to set out the basic structure of the new first instalment of VAC, which is made up of the first and the second instalments of VAC.  New subregulation 2.12C(1) explains that the first instalment comprises the base application charge or the additional applicant charge, any subsequent temporary application charge and any non-Internet application charge.

 

Two new notes are also inserted into subregulation 2.12C(1).

 

New note 1 provides that the first instalment may include one or more of the components explained in this regulation.

 

The purpose of this amendment is to make clear that the first instalment of VAC may include one or more of the components.

 

New note 2 refers to regulation 5.36 in relation to the countries and currencies in which payment of an instalment of the VAC may be made.

 

The purpose of new note 2 is to make reference to regulation 5.36, concerning the countries and currencies in which payment of an instalment of VAC may be made, which, depending on a visa applicant's circumstances, may be of particular importance in the context of liability to pay an amount of VAC.

 

Subregulation 2.12C(2)

 

New subregulation 2.12C(2) provides that, for the first instalment of VAC, the components mentioned in paragraph 2.12C(1)(a) that are applicable to a particular application for a visa are worked out as follows:

 

*         unless paragraphs 2.12C(b), (c) or (d) applies, the components are:

 

o   the base application charge; and

o   the subsequent temporary application charge (if any); and

o   the non-Internet application charge (if any);

 

*         if:

 

o   the base application charge for the application is nil; or

o   the base application charge for another application, with which the application is combined in a way permitted by Schedule 1, or is sought to be combined in a way permitted by regulation 2.08A or 2.08B, is nil;

 

no other components are applicable;

 

*         if:

 

o   the application is combined with another application in a way permitted by Schedule 1, or is sought to be combined with another application in a way permitted by regulation 2.08A or 2.08B; and

o   the first instalment (if any) of visa application charge (including the base application charge) has been paid for the other application;

 

the components are the additional applicant charge (if any) and the subsequent temporary applicant charge (if any);

 

*         if the application is combined with another application in a way permitted by regulation 2.08 or 2.08AA, no components are applicable.

 

The purpose of this amendment is to explain the method by which the components of first instalment payable by a visa applicant are calculated.

 

New paragraph 2.12C(2)(a) sets out the components of first instalment of VAC that are payable by a visa applicant, if the circumstances in new paragraphs 2.12C(2)(b), (c) or (d) do not exist.  Those components are the base application charge, the subsequent temporary application charge (if any) and the non-Internet application charge (if any).

 

New paragraph 2.12C(2)(b) provides for situations where the base application charge for a particular visa is nil, or where a person has combined their application with another application in a way permitted by Schedule 1, or is seeking to combine their application with another application in a way permitted by regulation 2.08A or 2.08B, and the base application charge for that other application is nil.  In both of those situations, no other components of the first instalment is payable.  The purpose of these new paragraphs is to make clear that where there is currently no first instalment of VAC for a particular visa, there is also no base application charge payable for a particular visa, and no other components of the first instalment of VAC are payable.

 

New paragraph 2.12C(2)(c) also provides for situations where a person combines their application with another application in a way permitted by Schedule 1, or seeks to combine their application with another application in a way permitted by regulation 2.08A or 2.08B, and the first instalment of VAC for that other application has been paid.  New paragraph 2.12C(2)(c) provides that in both of those circumstances the components that have to be paid are the additional applicant charge and the subsequent temporary application charge.

 

Finally, new paragraph 2.12C(2)(d) covers situations in which an application is combined with another application in a way permitted by regulation 2.08 or 2.08AA, in which case no components are payable.

 

Each of the components of first instalment of VAC is explained in greater detail in the subregulations that follow.

 

Subregulation 2.12C(3)

 

New subregulation 2.12C(3) provides that, for the first instalment of VAC, base application charge is payable by an applicant for a visa if the additional applicant charge is not payable in relation to the application.

 

The purpose of this amendment is to set out the meaning of the new base application charge, and also the circumstances in which this charge is payable.  The new base application charge is intended to be a charge that must, by default, be paid by a visa applicant in order to make a valid application for a visa, except where their application is combined with another application in a way permitted by Schedule 1 to the Regulations, or is sought to be combined with another application in a way permitted by regulation 2.08A or 2.08B, and the first instalment of VAC(including the base application charge) in relation to the other application has been paid.  As provided for in new subregulation 2.12C(2), the base application charge is also not payable where an application is combined with another application in a way permitted by regulation 2.08 or 2.08AA.

 

Two new notes are also inserted into subregulation 2.12C(3), which assists in explaining the operation of this subregulation.

 

New note 1 provides that base application charge and additional applicant charge are alternatives.  This note also provides that an applicant does not pay both components for the one application.

 

The purpose of this amendment is to clarify that the base application charge and the additional applicant charge are alternatives and therefore applicants who are liable to pay the base application charge are not liable to pay the additional applicant charge (and vice versa).

 

New note 2 provides that the amount of base application charge varies according to the visa involved, and is set out in the item of Schedule 1 that applies to the visa.

 

The purpose of this amendment is to clarify that the base application charge is not an invariable amount and that it is prescribed for each visa in the relevant subitem in Schedule 1 for that visa.

 

Subregulation 2.12C(4)

 

New subregulation 2.12C(4) provides that, for the first instalment of VAC:

 

*         if the application is combined with another application in a way permitted by Schedule 1, additional applicant charge is payable by an applicant for a visa; and

 

*         if an application is sought to be combined with another application in a way permitted by regulation 2.08A or 2.08B, additional applicant charge is payable by the applicant whose application is being sought to be combined with the other application.

 

The purpose of this amendment is to set out the meaning of the new additional applicant charge, and also the circumstances in which this charge is payable.

 

Three new notes are also inserted into subregulation 2.12C(4), which assists in explaining the operation of this subregulation.

 

New note 1 provides that base application charge and additional applicant charge are alternatives.  This note also provides that an applicant does not pay both components for the one application.

 

New note 2 provides that the amount of additional applicant charge varies according to the visa involved, and is set out in the item of Schedule 1 that applies to the visa.

 

Consistent with the note in new subregulation 2.12C(3), the purpose of notes 1 and 2 in subregulation 2.12C(4) is to make clear that the additional applicant charge is not an invariable amount, and that it is set out in the item of Schedule 1 that applies to the visa.

 

New note 3 provides that, for paragraph 2.12C(4)(b), additional applicant charge must be paid before a person is taken, under regulation 2.08A or 2.08B, to have applied for a visa.

 

The purpose of this amendment is to clarify that, in addition to the requirements set out in items [6] to [9] above, applicants seeking to make a combined application under regulation 2.08A or 2.08B must pay the additional applicant charge in order to be taken to make that combined application.

 

Subregulation 2.12C(5)

 

New subregulation 2.12C(5) provides that the subsequent temporary application charge is payable by an applicant for a visa if:

 

• the visa is specified by the Minister in an instrument in writing for new paragraph 2.12C(5)(a); and

 

• the applicant is in Australia at the time of application; and

 

• the applicant holds, or the last substantive visa held by the applicant was, a visa specified by the Minister in an instrument in writing for new paragraph 2.12C(5)(c) (the previous visa); and

 

• the applicant was in Australia at the time of application for the previous visa; and

 

• the previous visa was not granted:

 

• as the result of an application that was taken, under regulation 2.08, to have been made; or
• as the result of an application that was taken to have been made by operation of law; or
• by the Minister exercising his or her power under section 195A, 345, 351, 391, 417, 454 or 501J of the Act; or
• without the applicant making an application (unless the application is taken to be made in a way permitted by regulation 2.08B).

 

The purpose of new subregulation 2.12C(5) is to set out the circumstances in which applicants may be liable to pay the subsequent temporary application charge.

 

Subregulation 2.12C(6)

 

New subregulation 2.12C(6) provides that the amount of subsequent temporary application charge is $700.

 

The purpose of new subregulation 2.12C(6) is to prescribe the amount for the subsequent temporary application charge.  Unlike the base application charge and the additional applicant charge, the amount of subsequent temporary application charge is fixed at $700.

 

Subregulation 2.12C(7)

 

New subregulation 2.12C(7) provides that non-Internet application charge is payable by an applicant for a visa if:

 

*         the visa is specified by the Minister in an instrument in writing for new paragraph 2.12C(7)(a); and

 

*         the application may be made as an Internet application; and

 

*         the application is not made as an Internet application; and

 

*         the base application charge is payable in relation to the application.

 

The purpose of new subregulation 2.12C(7) is to set out the circumstances in which applicants may be liable to pay the non-Internet application charge.  It is intended that the non-Internet application charge only applies to visas that are specified by the Minister in an instrument in writing, in circumstances where an Internet application may be made but is not made and the base application charge is payable in relation to that application.

 

New subregulation 2.12C(7) also inserts a new note, which provides that the base application charge and the additional applicant charge are alternatives, and that the non-Internet application charge is payable if the base application charge is payable.

 

Consistent with note 1 in new subregulations 2.12C(3) and (4), the purpose of inserting the note in new subregulation 2.12C(7) is to clarify that the base application charge and additional applicant charge are not both payable for the same application.  In addition, this note clarifies that the non-Internet application charge is payable if the base application charge is payable.  This reflects the principles set out in new paragraphs 2.12C(2)(b), (c) and (d), which describe situations in which the base application charge is nil or not payable, and the charges that are payable (if any) in those circumstances.

 

Subregulation 2.12C(8)

 

New subregulation 2.12C(8) provides that the non-Internet application charge is not payable by an applicant for a visa in circumstances specified by the Minister in an instrument in writing for this subregulation.

 

The purpose of new subregulation 2.12C(8) is to provide the Minister with the ability to specify circumstances in which the non-Internet application charge is not payable.

 

Subregulation 2.12C(9)

 

New subregulation 2.12C(9) provides that the amount of non-Internet application charge is $80.

 

The purpose of new subregulation 2.12C(9) is to prescribe the amount for the non-Internet application charge.  The amount of non-Internet application charge is fixed at $80.

 

Item [11] - Regulation 2.12E

 

This item repeals Regulation 2.12E of Division 2.2A to the Regulations.

 

The purpose of this amendment is to remove regulation 2.12E from the Regulations, which currently provides in paragraphs 2.12E(a) and (b) that, in spite of any other provision of the Regulations, an applicant is not liable to pay the first instalment of the VAC in relation to an application for a visa if:

 

• the application is combined with another application in a way permitted by the relevant item in Schedule 1, or by regulation 2.08, 2.08A or 2.08B; and

 

• the first instalment (if any) of the visa applicant charge in relation to that other application has been paid.

 

In light of the new additional applicant charge being introduced to apply specifically to visa applicants who meet the circumstances set out in paragraphs 2.12E(a) and (b), this regulation is not consistent with the new visa pricing regime and is removed for that reason.

 

Item [12] - Subregulation 2.19A(3) (table item 12)

 

This item repeals item 12 in the table beneath subregulation 2.19A(3) of Part 2 of the Regulations.

 

Currently, under subregulation 2.19A(3), the amount of visa evidence charge payable by a holder of a Subclass 403 (Temporary Work (International Relations)) visa (Subclass 403 visa) is nil if that person:

 

• satisfied the requirements of Subdivision 403.22, 403.23 or 403.24 of Schedule 2; or

 

• was a member of the family unit of a person who satisfied the requirements of Subdivision 403.22 or 403.23 of Schedule 2.

 

The purpose of this amendment is to remove the reference to the Subclass 403 visa in the table in subregulation 2.19A(3) so that the amount of visa evidence charge to be paid by holders of a Subclass 403 visa is not nil for their first request for a visa label.  This amendment is made in conjunction with the amendment in item [13], which adds the Subclass 403 visa to the table of visas in subregulation 2.19A(4), so that holders of a Subclass 403 visa  pay nil visa evidence charge not only for their first request for a visa label, but for any request for a visa label.

 

Item [13] - Subregulation 2.19A(3) (table, after item 19)

 

This item inserts '19A Subclass 576 (AusAID or Defence Sector) visa' after item 19 in the table beneath subregulation 2.19A(3).

 

Currently, subregulation 2.19A(3) prescribes a list of visas for which the amount of visa evidence charge to be paid by a visa applicant is nil.

 

The purpose of this amendment is to add the Subclass 576 (AusAID or Defence Sector) visa (Subclass 576 visa) to that list, so that all holders of a Subclass 576 visa pay nil visa evidence charge for the first request for a visa label relating to that visa.

 

Item [14] - Subregulation 2.19A(3) (table item 28)

 

This item substitutes the visa referred to in item 28 of the table under subregulation 2.19A(3) with 'A student visa for which the amount of VAC was nil on the basis that the requirement in subparagraph 1222(2)(a)(i), (iii), (iv), (v) or (vi) of Schedule 1 was satisfied'.

 

Currently, subregulation 2.19A(3) prescribes a list of visas for which the amount of visa evidence charge to be paid by a visa applicant is nil.  Included in item 28 of that list is a student visa for which the amount of VAC was nil on the basis that the requirement in sub-subparagraph 1222(2)(a)(i)(A), (D) or (E) of Schedule 1 was satisfied.

 

The purpose of this amendment is to add to item 28 in the list in subregulation 2.19A(3) applicants prescribed in sub-subparagraph 1222(2)(a)(i)(F) and (G).  That is:

 

• an applicant who is a Defence student to whom subparagraph 1.04B(b)(ii) applies; and

 

• an applicant who is a member of the family unit of a Defence student who has not, since becoming a Defence student, applied for a visa other than a student visa.

 

By adding these applicants to item 28 in the list in subregulation 2.19A(3), those applicants are required to pay nil visa evidence charge for the first request for a visa label relating to that visa.  The reference to subparagraph 1222(2)(a)(i), (iii), (iv), (v) or (vi) reflects the amendments in item [63] below, which substitute subregulation 1222(2) of Schedule 1 to the Regulations.

 

Item [15] - Subregulation 2.19A(4) (table, at the end)

 

This item adds, at the end of the table beneath subregulation 2.19A(4), '4 Subclass 403 (Temporary Work (International Relations)) visa'.

 

Subregulation 2.19A(4) currently provides that, despite subregulation 2.19A(2), if a request for a visa label relates to a visa mentioned in the table in subregulation 2.19A(4) and that the person holds, the amount of visa evidence charge is nil.

 

The purpose of this amendment is to add the Subclass 403 visa to the table in subregulation 2.19A(4), so that the amount of visa evidence charge to be paid by holders of a Subclass 403 visa is nil.  This amendment is made in conjunction with the amendment in item [12].

 

The effect of these two amendments is that the amount of visa evidence charge to be paid by a holder of a Subclass 403 visa who makes a request for a visa label is nil, even if the request is not the visa holder's first request.

 

Items [16] - [20], [22] - [29], [31], [32], [34], [36], [37], [39], [40], [42] - [52], [55] - [61] and [63] - [84]

 

These items substitute subitems (2) of the following items in Schedule 1 to the Regulations:

 

1104AA	1104BA	1104B	1108	1108A
1111	1112	1113	1114B	1114C
1118A	1123A	1123B	1124	1124A
1124B	1128	1129	1130	1130A
1136	1137	1138	1202A	1202B
1205	1208A	1211	1212B	1214A
1214BA	1215	1216	1217	1218
1218AA	1221	1221A	1222	1223A
1224A	1225	1228	1229	1230
1231	1232	1233	1234	1235
1236	1301	1302	1303	1304
1305	1306	1307	1401	1402

 

Currently, the first instalment of VAC for each class, subclass or stream of visa is prescribed in the relevant subitem (2) of Schedule 1 to the Regulations.  The amendments in items [16] - [20], [22] - [29], [31], [32], [34], [36], [37], [39], [40], [42] - [52], [55] - [61] and [63] - [84] substitutes the subitems (2) in each of the items listed above.

 

The new subitems insert the base application charge and, where applicable, the additional applicant charge in explaining the amount payable for the first instalment of VAC.  The amount of additional applicant charge is different depending on whether the visa applicant is at least 18 years of age or less than 18 years of age, and this distinction is provided for, where relevant, in each of those subitems.

 

The remaining two components of the first instalment of VAC are the subsequent temporary application charge and the non-Internet application charge.  The amount of subsequent temporary application charge and non-Internet application charge is not set out in the table in the relevant subitem (2) for each class of visa in Schedule 1, but is prescribed in new regulation 2.12C.

 

A note below the table in new paragraph (2)(a) of each item listed above provides that regulation 2.12C explains the components of the first instalment of VAC and specifies the amounts of subsequent temporary application charge and non-Internet application charge.  The note also provides that not all of the components may apply to a particular application, and clarifies that additional applicant charge is paid by an applicant who claims to be a member of the family unit of another application and seeks to combine their application with that applicant's application.

 

Where there is more than one amount of second instalment of VAC currently prescribed in the Regulations for a particular visa, the amendments also insert a table into new paragraph (2)(b) for each item in Schedule 1, in which the amounts currently prescribed in Schedule 1 as the second instalment of VAC for each visa are listed.

 

The purpose of these amendments is to prescribe, in the relevant item in Schedule 1 for each visa, the amount of base application charge or additional applicant charge that a visa applicant is required to pay in order to make a valid application for that visa.  The amendments ensure that, for the purposes of new subregulation 2.12C(1), in item [10] of the Regulation, amounts are specified in each item in Schedule 1 as a component of the first and the second instalment, and reference is made to the fact that a visa applicant may also be required to pay subsequent temporary application charge and non-Internet application charge in order to make a valid application for their visa.

 

Items [19], [20] and [49]

 

The amendments in items [19], [20] and [49] of the Regulation omit subparagraphs 1108(2)(a)(i), 1108A(2)(a)(i) and 1211(2)(a)(i) of Schedule 1 to the Regulations.

 

Currently, subparagraph 1108(2)(a)(i) provides that, in the case of an applicant whose brother or sister applies for a Child (Migrant) (Class AH) visa at the same time and place as the applicant and has paid the amount of charge specified in subparagraph 1108(2)(a)(ii) or 1108A(2)(a)(iii) on his or her application, the first instalment of VAC is nil.  Subparagraph 1108A(2)(a)(i) of Schedule 1 similarly prescribes a nil first instalment of VAC is for an applicant whose brother or sister applies for a Child (Residence)(Class BT) visa at the same time and place as the applicant and has paid the amount of charge specified in subparagraph 1108A(2)(a)(ii) or 1108A(2)(a)(v) on his or her application.

 

Subparagraph 1211(2)(a)(i) provides that, in the case of an applicant who applies as the dependent child of a holder of a Subclass 309, 310, 445, 820 or 826 visa and whose brother or sister applies, as a dependent child of a holder of a Subclass 309, 310, 445, 820 or 826 visa, for an Extended Eligibility (Temporary) (Class TK) visa at the same time and place as the applicant and has paid the fee specified in subparagraph 1211(2)(a)(ii) on his or her application, the first instalment of VAC is nil.

 

The purpose of omitting each of these subparagraphs is to ensure that the sibling of a holder of any of the visas specified in those subparagraphs are not exempt from paying the base application charge or the additional application charge (whichever applies to their situation) when they make their application.  If these subparagraphs were not removed and the siblings of visa holders provided for in each of those subparagraphs were prescribed a nil first instalment of VAC, there may mean there is a financial incentive for visa applicants to sponsor their children for a Child (Migrant)(Class AH) visa, a Child (Residence)(Class BT) visa or a Subclass 445 (Extended Eligibility) visa instead of having them apply for a visa at the same time and place as them.  This is contrary to the intention of the permanent migration program.

 

Items [21], [30], [33], [35], [38], [41], [53], [54] and [62]

 

These items insert a paragraph into the following subitems (3) of Schedule 1 to the Regulations.

 

1108A	1123B	1124A	1124B	1129
1130A	1214BA	1214C	1221A

 

New paragraphs 1108A(3)(da), 1123B(3)(ca), 1124A(3)(bb), 1124B(3)(ca), 1130A(3)(ba), 1214C(3)(fa) and 1221A(3)(da) provide that an application must be made:

 

• by posting the application (with the correct pre-paid postage) to the post office box address or other address specified by the Minister in an instrument in writing for this subparagraph; or

 

• by having the application delivered by a courier service to the address specified by the Minister in an instrument in writing for this subparagraph; or

 

• if no address has been specified for subparagraphs (ii) and (iii)--by lodging the application at an office of Immigration.

 

New paragraphs 1129(3)(f) and 1214BA(3)(d) provide that an application that is made in Australia must be made:

 

• by posting the application (with the correct pre-paid postage) to the post office box address or other address specified by the Minister in an instrument in writing for this subparagraph; or

 

• by having the application delivered by a courier service to the address specified by the Minister in an instrument in writing for this subparagraph; or

 

• if no address has been specified for subparagraphs (ii) and (iii)--by lodging the application at an office of Immigration.

 

The purpose of these amendments is to require a visa applicant to lodge their application by posting or sending it by courier to a specified address in order to make a valid application, and to allow paper applications to be made at a counter in a departmental office only if no address is specified for the application to be sent or couriered to.  The amendments enable the Minister for Immigration and Citizenship to specify addresses to which non-Internet applications must be sent, in order for applications to be processed as expeditiously as possible.

 

The purpose of specifying in new paragraphs 1129(3)(f) and 1214BA(3)(d) that those paragraphs relate to an application that is made in Australia is to ensure that applicants who make their application in Australia must lodge their application at an office of Immigration if no address has been specified by the Minister for applications to be sent or couriered to.

 

Item [85] - Part 15 of Schedule 13 (second occurring)

 

This item renumbers the second occurring 'Part 15' of Schedule 13 to the Regulations as 'Part 16'.

 

This is a technical amendment and its purpose is to ensure that the Parts in Schedule 13 to the Regulations are numbered in sequential order.

 

Item [86] - Item 1501 of Schedule 13 (second occurring)

 

This item renumbers the second occurring of 'Item 1501' of Schedule 13 to the Regulations as 'Part 1601'.

 

This is a technical amendment and its purpose is to ensure that the items in Schedule 13 to the Regulations are numbered in sequential order.  This amendment is also consequential to the amendments at item [85] above.

 

Item [87] - At the end of Schedule 13

 

This item adds a new Part 17 - Amendments made by the Migration Amendment (Visa Application Charge and Related Matters) Regulation 2013 at the end of Schedule 13.

 

The purpose of new Part 17 is to insert a new clause 1701, which provides that the amendments made by Schedule 1 to the Migration Amendment (Visa Application Charge and Related Matters) Regulation 2013 apply in relation to an application for a visa made on or after 1 July 2013.