EXPLANATORY STATEMENT
Issued by authority of the Minister for Home Affairs
Migration Regulations 1994
Migration (Places and Currencies for Paying of Fees) Instrument (LIN 21/004) 2021 (No. 2)
1 The instrument, Departmental reference LIN 21/004, is made under paragraphs 5.36(1)(a) and (b) of the Migration Regulations 1994 (the Migration Regulations).
2 The instrument repeals Migration (LIN 21/002: Places and Currencies for Paying of Fees) Instrument 2021 (LIN 21/002) in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act). This subsection provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument.
3 Paragraph 13(1)(a) of the Legislation Act 2003 (the Legislation Act) provides that subsection 33(3) of the Acts Interpretation Act applies to an instrument-making power in the Migration Regulations as if the Migration Regulations were an Act. This means that paragraphs 5.36(1)(a) and 5.36(1)(b) of the Migration Regulations also include powers to amend or repeal an instrument made under those provisions.
4 The instrument commences on 1 July 2021, and is a legislative instrument for the Legislation Act.
Purpose
5 Under paragraph 46(1)(d) of the Australian Citizenship Act 2007 (Citizenship Act), an application made under that Act, must be accompanied by the fee (if any) prescribed by the Australian Citizenship Regulation 2016 (Citizenship Regulation). Subregulation 16(2) of the Citizenship Regulation provides that for the purposes of paragraph 46(1)(d) of the Citizenship Act, the payment of the fee must be made in a currency that is specified in the places and currencies instrument as a currency in which a fee may be paid in that place. If the currency in which the payment is to be made is specified in the places and currencies instrument, the amount of the payment is to be worked out using the exchange rate for the currency specified in the conversion instrument.
6 Places and currencies instruments has the same meaning as in subregulation 16(7) of the Citizenship Regulation; this definition refers to the instrument made under paragraphs 5.36(1)(a) and (b) of the Migration Regulations. Instruments made under the Migration Regulations are incorporated in the Citizenship Regulation because the Citizenship Act does not currently permit the Minister for Home Affairs to make instruments under the Citizenship Regulation.
7 Due to the operation of section 14 of the Legislation Act, it is not possible to incorporate, by reference, the instrument made under paragraphs 5.36(1)(a) and 5.36(1)(b) of the Migration Regulations as in force from time to time. Rather, the new instrument would have to be incorporated, by reference, every time the Citizenship Regulation is amended. The Citizenship Regulation has been amended to incorporate this instrument.
8 Subregulation 5.36(1) provides that payment of a fee must be made in a place, being Australia or a foreign country, that is specified in a legislative instrument made by the Minister for the purposes of this paragraph; and in a currency that is specified for the purposes of this paragraph in an legislative instrument as a currency in which a fee may be paid in that place.
9 Subregulation 5.36(4) provides that a fee for the purpose of regulation 5.36 includes; an instalment of visa application charge; or an amount of visa evidence charge; or an amount of nomination training contribution charge; or a fee payable under the Migration Regulations except regulation 5.14C.
10 LIN 21/004 repeals the Migration (LIN 21/002: Places and Currencies for Paying of Fees) Instrument 2021 as in force on 1 January 2021 and operates to specify the place in which a fee (excluding visa application charges mentioned in subregulation 5.36(3A) of the Regulations) must be paid and to specify the currency in which a fee must be paid in that place, being Australia or a foreign country, for the purpose of paragraphs 5.36(1)(a) and (b) of the Regulations as at 1 July 2021. Foreign country is defined in section 2B of the Acts Interpretation Act.
11 The purpose of the instrument is to undertake a biannual update of the places where payment of a fee may be made and the corresponding currencies that must be used for payment of a fee in that place. The instrument specifies the country in which payment of a fee may be made and the currency in which a fee may be paid in that place. It enables the Department of Home Affairs (Home Affairs) to advise on and accept only those currencies that are readily and legally accessible to the public and bankable by each overseas office.
Consultation
12 In accordance with paragraph 15J(2)(e) of the Legislation Act 2003, consultation was not necessary. The instrument is of a minor nature and does not substantially alter existing arrangements.
13 The Office of Best Practice Regulation (OBPR) have advised that the instrument dealt with matters of a minor nature and no regulatory impact statement was required. The OBPR reference number is 25184.
Details of the instrument
14 Paragraph (a) states each place is specified in Schedule 1 of the instrument.
15 Paragraph (b) states that the currency is specified in Schedule 1 of the instrument.
16 Paragraph (c) repeals the Migration (LIN 21/002: Places and Currencies for Paying of Fees) Instrument 2021.
17 Schedule 1 sets out the updated places and the currencies that are accepted in each place.
Parliamentary scrutiny etc.
18 The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because 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.
19 The instrument was made by the Chief Finance Officer, Finance Division, in accordance with the Migration (Minister—Instrument-making powers for Department and Australian Border Force) Delegation 2021.