EXPLANATORY STATEMENT
Issued by the Minister for Immigration and Border Protection
Migration Act 1958
Migration Amendment (Working Holiday Maker Visa Application Charges) Regulations 2017
The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.
Subsection 504(1) of the Migration 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 Migration Act.
In addition, regulations may be made pursuant to the provisions of the Migration Act listed in Attachment A.
The Migration Amendment (Working Holiday Maker Visa Application Charges) Regulations 2017 (the Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to provide for a visa application charge (VAC) of $440 for the:
- Subclass 417 (Working Holiday) visa; and
- Subclass 462 (Work and Holiday) visa.
This implements a Government decision made in the Mid-Year Economic and Fiscal Outlook (MYEFO) 2016-2017 to maintain the VAC for these visas at $440.
On 24 November 2016 the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016 was passed, including changes to the Migration Regulations 1994 to reduce the VAC for working holiday makers (WHMs) by $50 to $390, from 1 July 2017.
Subsequently, through MYEFO 2016-2017, the Government, in finalising the Working Holiday Maker (WHM) Reform Package, agreed to maintain the VAC for the working holiday maker (Subclass 417 and Subclass 462) visas at $440. The Regulations give effect to that decision.
The amendment is permitted by subsection 13(5) of the Legislation Act 2003, which provides that an amendment of an instrument by an Act does not prevent the instrument from subsequently being amended or repealed by a person who is authorised to do so.
A Statement of Compatibility with Human Rights (the Statement) has been completed for the Regulations, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Regulations are compatible with human rights. A copy of the Statement is at Attachment B.
Details of the Regulations are set out in Attachment C.
The Migration Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.
The Office of Best Practice Regulation (the OBPR) has been consulted regarding the amendments made by the Regulations. The OBPR considers that these amendments are machinery in nature and is expected to have nil or minor regulatory impacts. The OBPR consultation reference number is 21713.
In finalising the WHM reform package, the Government considered the views of a wide range of stakeholders through a public consultation process. The Government has delivered a WHM reform package which aims to meet seasonal labour needs and ensures that Australia continues to be a top destination for working holiday makers.
The revenue of not proceeding with the planned $50 reduction in the visa application charge will fund the Seasonal Worker Incentives Trial which will provide incentives for eligible Australian job seekers to undertake horticultural seasonal work. This trial was also announced in the MYEFO.
The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.
The Regulations commence immediately after the commencement of Schedule 1 to the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016.
ATTACHMENT A
Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor‑General may make regulations, not inconsistent with the Migration Act, prescribing all matters which by the Migration 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 Migration Act.
In addition, the following provisions of the Migration Act may apply:
- section 45A, which provides that a non-citizen who makes an application for a visa is liable to pay a visa application charge if, assuming the charge were paid, the application would be a valid visa application;
- subsection 45B(1), which provides that the amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in the Migration Regulations 1994 (the Migration Regulations);
- paragraph 46(1)(ba), which provides that an application for a visa is valid if, and only if, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid (subject to the Migration Regulations providing otherwise).
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Working Holiday Maker Visa Application Charges) Regulations 2017
This Disallowable Legislative Instrument, titled the Migration Amendment (Working Holiday Maker Visa Application Charges Regulations 2017 (the Regulations), 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.
Overview of the Disallowable Legislative Instrument
The Regulations insert a visa application charge (VAC) of $440 for the Subclass 417 (Working Holiday) visa and the Subclass 462 (Work and Holiday) visa. The effect of the Regulations is to maintain the VAC for the affected visas at $440, a measure which was announced in the Mid-Year Economic Fiscal Outlook (MYEFO) on 19 December 2016.
In MYEFO, the Department of the Treasury advised the VACs would be maintained at AUD$440 to offset the costs of the Government’s Seasonal Worker Incentives Trial. The Regulations will take effect on 1 July 2017 and ensures the VACs will be AUD$440, in line with the Parliament’s commitments.
A VAC is paid at the time of application by individuals who are seeking a Working Holiday visa or Work and Holiday visa for Australia. Applicants currently pay AUD$440 and the amendments made by the Regulations ensure that applicants after 1 July 2017 will pay the same amount.
The amendment only applies to the VAC amount. There are no changes to eligibility requirements for application or for visa grant.
Human rights implications
The Regulations do not engage any of the applicable rights or freedoms.
Conclusion
The Regulations are compatible with human rights as they do not raise any human rights issues.
The Hon Peter Dutton MP, Minister for Immigration and Border Protection
ATTACHMENT C
Details of the Migration Amendment (Working Holiday Maker Visa Application Charges) Regulations 2017
Section 1 – Name of Regulations
This section provides that the title of the Regulations is the Migration Amendment (Working Holiday Maker Visa Application Charges) Regulations 2017 (the Regulations).
Section 2 – Commencement
This section provides that the Regulations commence immediately after the commencement of Schedule 1 to the Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016.
Section 3 – Authority
This section provides that the Regulations are made under the Migration Act 1958 (the Migration Act).
Section 4 – Schedule(s)
This section provides that each instrument that is specified in a Schedule to the Regulations is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Regulations has effect according to its terms.
Schedule 1 – Amendments
Migration Regulations 1994
Item 1 – Paragraphs 1224A(2)(a) and 1225(2)(a)
This item amends paragraphs 1224A(2)(a) and 1225(2)(a) to provide for a visa application charge of $440 for:
- the Subclass 417 (Working Holiday) visa; and
- the Subclass 462 (Work and Holiday) visa.
The effect of the Regulations is to maintain the visa application charges for the affected visas at $440, a measure which was announced by the Treasurer in the Mid-Year Economic and Fiscal Outlook (MYEFO) on 19 December 2016.
Part 63 – Amendments made by the Migration Amendment (Working Holiday Maker Visa Application Charges) Regulations 2017
Item 6301 Operation of Schedule 1
This item clarifies that the amendments made by Schedule 1 to the Regulations apply in relation to an application for a visa made on or after the commencement of that Schedule.