Bills Digest no. 184 2006–07
Migration (Sponsorship Fees) Bill 2007
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(Sponsorship Fees) Bill 2007
30 May 2007
House: House of Representatives
Portfolio: Immigration and
To validate the
collection of visa application charges from certain sponsorship
applicants during the period 1 May 1997 23 May 2007.
A fee initially amounting to $145 for a single
application has been charged to persons or organisations wishing to
sponsor a migrant since 1989.(1) The fee is now
The Migration (Visa Application) Charge
Act 1997 introduced a new system of visa application charges
on a cost-recovery principle. This system was fully implemented on
30 April 1997 by amendments to the Migration Regulations
1994.(3) Those amendments, however, failed to amend
regulation 5.38 in two important respects:
- they failed to replace the concept of fee with the concept of
visa application charge (a change that was implemented elsewhere in
the regulations at the time)
- they failed to cater for the practice that had arisen where a
visa application was lodged by the person wishing to migrate,
rather than by the sponsor the fee was only chargeable where the
visa application was made by the sponsor.
Regulation 5.38 was amended in April and May
2007 to correct these two deficiencies. This however left the
monies that had been collected during the previous ten years in
limbo, effectively unlawfully collected.
There have been previous cases where taxes or
fees have been found to have been unlawfully collected and have
been subsequently validated, for example:
- the Customs (Tariff Concession System Validations) Act
1999 was passed to validate certain delegations in consequence
of which concessionary customs duty was collected from various
- in 1997, when the High Court found that the states had been
unlawfully collecting tobacco franchise fees,(5) the
Commonwealth passed a package of legislation to collect revenues
formerly levied under State franchise laws which the High Court had
held either to be invalid or constitutionally doubtful
- the Industry Research and Development Amendment Act
1995 was passed to retrospectively validate certain
eligibility guidelines and criteria relating to the 150% research
and development tax concession (7)
The 1997 tobacco-fees case is very similar to
the present one: without it, the duty collected would have had to
be repaid. Without this Bill, the sponsorship fees collected over
ten years would also have to be repaid. The Government has given no
indication as to how many people have paid the sponsorship fee
during this period.
This Bill corrects a regulatory flaw and
validates a payment that was validly collected from 1989 to 1997,
but was invalidly collected from 1997 to May 2007.
- Migration (Criteria
and General) Regulations 1989, Statutory Rule 1989, No. 365, r.
Regulations 1994, r. 5.38.
Regulations (Amendment) 1997, Statutory Rule 1997, No. 91, gazetted
and commencing on 1 May 1997.
- Ian Ireland and
Bernard Pulle, Customs
(Tariff Concession System Validations) Bill 1999 , Bills
Digest, no. 60, Department of the Parliamentary Library,
Canberra, 1999 2000.
- Ha v New
South Wales; Walter Hammond & Associates v New South
Wales  HCA 34; (1997) 189 CLR 465.
- Bob Bennett,
Franchise Fees Windfall Tax (Collection) Bill 1997 , Bills
Digest, no. 23, Department of the Parliamentary Library,
Canberra, 1997 98.
- Ian Ireland,
Industry Research and Development Amendment Bill 1995 , Bills
Digest, no. 116, Department of the Parliamentary Library,
Canberra, 1995 96.
14 June 2007
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