EXPLANATORY STATEMENT
Migration Regulations 1994
Migration (LIN 21/001: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2021
(paragraph 5.36(1A)(a))
- The instrument, LIN 21/001, is made under paragraph 5.36(1A)(a) of the Migration Regulations 1994 (the Regulations).
- The instrument repeals Migration (LIN 20/003: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2020 (F2020L00751), made under paragraph 5.36(1A)(a) of the Regulations in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
- The instrument operates to specify foreign currencies in which a fee may be paid and the relevant exchange rates for foreign currencies in relation to the Australian dollar (AUD) for the purposes of paragraph 5.36(1A)(a) of the Regulations (excluding visa application charges mentioned in subregulation 5.36(3A) of the Regulations). Accordingly, the instrument operates to specify how the amount of a fee payment is to be calculated for the purposes of subregulation 5.36(1A) of the Regulations.
- The purpose of the instrument is to undertake a biannual update of the exchange rates for the specified foreign currencies to AUD. The exchange rates are updated in the instrument to reflect changes in foreign currencies exchange rates since the previous update.
- The specified currencies’ corresponding International Organization for Standardization (ISO) code has been noted in the instrument, for information only.
- In accordance with paragraph 15J(2)(e) of the Legislation Act 2003, consultation was not necessary. The instrument is of a minor or machinery nature and does not substantially alter existing arrangements.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 25184).
- The Chief Finance Officer, Finance Division, who made the instrument was appropriately delegated by the Minister (Ministerial Instrument-making Powers) Delegation 2020/252.
- Under paragraph (b) of item 20 of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
- The instrument commences on 1 January 2021.
Overview
The Migration (LIN 21/001: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2021, enacted under the Migration Regulations 1994, was introduced to address the need for a periodic update of exchange rates for foreign currencies in relation to the Australian dollar for the payment of visa application charges and fees. This instrument repeals its predecessor, the Migration (LIN 20/003: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2020, and is made by the Chief Finance Officer, Finance Division, pursuant to the authority granted by the Minister. The instrument's primary purpose is to facilitate the calculation of fee payments in foreign currencies by specifying the exchange rates for these currencies and is designed to be a minor adjustment, thus not requiring extensive consultation or a Regulatory Impact Statement. The instrument came into effect on 1 January 2021 and is exempt from disallowance, meaning it does not require a Statement of Compatibility with Human Rights.
Scope and Application
The Migration (LIN 21/001: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2021 applies to the payment of visa application charges and fees in foreign currencies for the purposes of the Migration Regulations 1994. This instrument specifies the foreign currencies in which fees may be paid and the relevant exchange rates for these currencies in relation to the Australian dollar, thus determining how the amount of a fee payment is calculated under the regulations. It applies to any individual or entity making a fee payment in a foreign currency for a visa application under the Migration Act 1958. Geographically, it operates within the framework of Commonwealth legislation and affects all applicants and entities processing visa applications across Australia. The instrument excludes certain visa application charges as specified in subregulation 5.36(3A) of the Regulations. The application of the instrument is subject to biannual updates to reflect changes in foreign currency exchange rates, and its operation is consistent with the overarching Migration Regulations 1994.
Key Provisions
The main operative sections of the Migration (LIN 21/001: Payment of Visa Application Charges and Fees in Foreign Currencies) Instrument 2021 (the Instrument) specify the foreign currencies in which visa application fees can be paid and the corresponding exchange rates for these currencies relative to the Australian dollar (AUD) (see section 1). This update is conducted biannually to reflect current exchange rate fluctuations. The specified foreign currencies are identified by their International Organization for Standardization (ISO) codes, although these codes are provided for informational purposes only and do not impact the legal requirements of the Instrument. This update aims to ensure that the payment of visa application fees in foreign currencies remains accurate and reflective of current economic conditions.
The Instrument imposes certain obligations on the parties involved, primarily those who are required to pay visa application charges and fees in foreign currencies. These obligations include adhering to the specified exchange rates when converting foreign currency payments into AUD for fee calculation purposes. The Instrument is designed to streamline the payment process for visa applicants by providing clear and updated exchange rates, thereby reducing the potential for disputes or misunderstandings regarding fee payments. Additionally, the Instrument ensures that the Department of Home Affairs has a consistent and transparent method for calculating the AUD equivalent of foreign currency payments.
Breaching the requirements set out in the Instrument can lead to various consequences. Although the Instrument itself does not explicitly detail penalties for non-compliance, the underlying Migration Regulations 1994 (the Regulations) may impose sanctions for failure to adhere to the stipulated fee payment procedures. Such breaches could potentially result in administrative penalties or other civil consequences as outlined in the Regulations. Furthermore, if non-compliance is deemed to be part of a broader pattern of fraudulent activity, it may lead to criminal charges under Australian law, which could include fines and imprisonment. It is essential for all parties involved to ensure they comply with the exchange rates and payment procedures specified in the Instrument to avoid any adverse outcomes.