EXPLANATORY STATEMENT
Issued by authority of the Immigration, Citizenship and Multicultural Affairs
Migration Regulations 1994
Migration (Refund of Second Instalment of Visa Application Charge) Instrument (LIN 23/022) 2023
1 The instrument, Departmental reference LIN 23/022, is made under paragraph 2.12H(2)(f) of the Migration Regulations 1994 (the Regulations).
2 The prior instrument made under this provision (Refund of Second Instalment of Visa Application Charge (IMMI 12/033) F2012L01306) was repealed by sunsetting on 2 October 2022.
3 To cover the period from 1 October 2022, the instrument is to be taken to have commenced on 2 October 2022.
4 This is a legislative instrument for the Legislation Act 2003 (the Legislation Act).
Purpose
5 Subregulation 2.12H(1) of the Regulations provides that the Minister must refund the amount paid by way of the second instalment of the visa application charge (VAC) in relation to an application for a visa if any of the circumstances mentioned in subregulation 2.12H(2) exists and the Minister has received a written request for a refund.
6 The circumstance set out by paragraph 2.12H(2)(f) is that the amount was paid under a provision of Schedule 1 to the Regulations specified in an instrument in writing and, within the period of 12 months starting on the applicant’s visa commencement day (within the meaning of the Immigration (Education) Act 1971), certain events specified in paragraph 2.12H(2)(f) occur.
7 The instrument specifies provisions of Schedule 1 to the Regulations for this purpose. The instrument will ensure ongoing access to VAC refunds for applicants who made applications for the visas listed in the Schedule to the instrument and to whom an event mentioned in paragraph 2.12H(2)(f) applies.
Consultation
8 The Office of Impact Analysis (OIA) (previously known as Office of Best Practice Regulation (OBPR)) was consulted and considered that the instrument dealt with matters of a minor nature. As such, impact analysis (IA) (previously known as Regulation Impact Statement) is not required (OBPR reference number: OBPR23-04217).
Parliamentary scrutiny etc.
9 The instrument is non-disallowable per subitem 20(b) of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, which provides that a legislative instrument made under Part 2 of the Regulations is not disallowable. A Statement of Compatibility with Human Rights is therefore also not required.
Overview
The Migration (Refund of Second Instalment of Visa Application Charge) Instrument 2023 (LIN 23/022) was enacted to continue providing a framework for the refund of the second instalment of the Visa Application Charge (VAC) under specific circumstances, as set out in the Migration Regulations 1994. This instrument replaced an earlier instrument (Refund of Second Instalment of Visa Application Charge (IMMI 12/033) F2012L01306) which expired on 2 October 2022. The purpose of the instrument is to ensure that applicants who meet certain conditions, such as the occurrence of specified events within 12 months of their visa commencement day, can receive a refund of the VAC they paid. The instrument was issued under the authority of the Minister for Immigration, Citizenship, and Multicultural Affairs and is designed to provide ongoing access to refunds for relevant applicants. The Office of Impact Analysis deemed the instrument to address minor matters, thus no impact analysis or parliamentary scrutiny was required.
Scope and Application
The instrument, Departmental reference LIN 23/022, is made under the Migration Regulations 1994, specifically targeting the refund of the second instalment of the visa application charge (VAC) for certain visa applicants. It applies to applicants who have paid the VAC under specified provisions of Schedule 1 to the Regulations and subsequently experience certain events within 12 months of their visa commencement day. This is to ensure that applicants who meet the criteria outlined in the instrument are eligible for a refund under the specified circumstances. The instrument is jurisdictional in nature, applying at the Commonwealth level and is applicable to all individuals who made applications for the visas listed within the instrument and meet the outlined conditions. It does not specify exclusions but rather defines the parameters for eligibility for a refund. The instrument is a legislative instrument for the purposes of the Legislation Act 2003 and is non-disallowable, meaning no parliamentary scrutiny or Statement of Compatibility with Human Rights is required. The instrument replaces a previous instrument that was repealed by sunsetting, and it is considered to deal with matters of minor nature as confirmed by the Office of Impact Analysis.
Key Provisions
The main operative sections of the instrument (LIN 23/022) under the Migration Regulations 1994 pertain to the refund of the second instalment of the visa application charge (VAC) under specific circumstances. According to subregulation 2.12H(1), the Minister is required to refund the second instalment of the VAC if a written request for a refund is received, and if one of the conditions outlined in subregulation 2.12H(2) is met. One such condition, detailed in paragraph 2.12H(2)(f), applies if the second instalment was paid in accordance with specified provisions of Schedule 1 to the Regulations, and certain events occur within 12 months from the applicant’s visa commencement day. The instrument identifies the relevant provisions of Schedule 1 for which this refund applies, ensuring that eligible applicants can claim a refund of their second instalment under these specific conditions.
The Act imposes several obligations and requirements on the parties it governs. First, applicants who have paid the second instalment of the VAC must ensure that they meet the criteria specified in the instrument, including the timing and nature of the events that trigger eligibility for a refund. They must also submit a written request to the Minister within the stipulated timeframe. Furthermore, the Minister is obligated to process these refund requests and determine eligibility based on the conditions outlined in the instrument and the Regulations. The instrument ensures clarity and consistency in the application of these refund provisions, thereby facilitating an orderly and fair process for eligible applicants.
Breach of the provisions of this instrument may result in civil or administrative consequences. Although the specific penalties are not detailed in the instrument, breaches of related provisions in the Migration Act 1958 or the Migration Regulations 1994 could lead to penalties under those Acts. For example, failure to comply with the refund requirements or submitting false information could be considered an offence, potentially leading to fines or other sanctions as prescribed by the relevant legislation. Additionally, applicants who do not adhere to the stipulated conditions for a refund may be ineligible to receive the refund, thereby forfeiting the opportunity to reclaim the second instalment of the VAC. It is important for all parties to understand and comply with the terms of the instrument to avoid any adverse outcomes.