Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration, Integration and Citizenship) Share this | Hansard source

This is yet another bill which is unlikely to grip the nation and which, probably appropriately, is greeted here today by public galleries that are completely empty. There is nothing particularly exciting in the Migration (Sponsorship Fees) Bill 2007; it is fairly straightforward. We are dealing with a mistake made inadvertently in 1997. To his credit, the Minister for Immigration and Citizenship has been completely up-front and has explained where the mistake was made, and this bill rectifies that drafting error.

The bill rectifies a relatively minor oversight in the drafting of migration regulations in 1997. The error resulted in fees being collected for applications to sponsor temporary entry visas without there being a technical legal basis for the collection of those fees. This arose because of a difference between the legislation and the regulations—one used the term ‘charge’ and the other used the term ‘fees’. Although it was corrected and brought into line in all of the other regulations, it did not happen with this regulation. The migration regulations have only very recently been amended to fix the problem so that the future collection of fees is valid. However, this bill is needed to clarify that those fees paid and collected from the time that the mistake was inadvertently made until the regulations were brought into line are taken to have been lawfully collected.

This is a very short bill. It contains one clause, which provides that, if a fee was paid for the sponsorship of an applicant for a temporary visa and the application was made between 1 May 1997 and 24 May 2007, and the fee was purportedly made under regulation No. 5.38 of the migration regulations, that fee is taken to have been payable at the time the fee was paid. The background for that clause goes to the payment of different fees, one for a visa application and the other for a sponsor’s application. The problem can arise where the visa application is lodged first instead of the sponsor’s application. If the sponsorship was then unsuccessful, the visa fee would have been paid but ultimately no visa would have been issued.

There are two circumstances in which fees were invalidly collected under regulation 5.38. The first was due to a failure to clarify that no sponsorship fee would be charged where the visa application itself is not subject to fees or charges. The words ‘or charges’ had to be included for the reason I referred to earlier. When the Migration Visa (Application Charge) Act came into effect on 1 May 2007, the visa application charge was introduced. Prior to this, the Migration Act 1958 and the Migration Regulations 1994 had referred to ‘visa application fees’. When amendments were made to change the terminology from ‘fees’ to ‘charges’, regulation 5.38 was overlooked.

The minister has been completely up-front about this having been an oversight. This is very minor legislation, but, because of the complaints made previously about the development of a culture of cover-up, to be completely up-front when a mistake is made is the way things ought to be done. Hopefully the behaviour of the minister on this bill can be reflected in other examples of a culture of cover-up which can be found anywhere—from what has happened around the cabinet table over the years in the administration of immigration right through to functions that may be held in a taxpayer funded home.

The second circumstance where fees were technically unlawfully collected between 1 May 1997 and 24 May 2007 was where a gap opened up between what the usual course of practice was and when technically fees were payable under the migration regulations. According to the minister’s second reading speech for this bill, the standard practice is that a potential sponsor will apply to the department to be approved. The visa applicant will then lodge the visa application. So long as it is done in this order, the problem I referred to cannot arise. Regulation 5.38 stipulated certain conditions under which the sponsorship fee would be payable. It stated that the fee was payable when ‘the sponsor is a person or organisation in Australia who, or which, lodges the application on behalf of the applicant’. The regulation also referred to the relevant visa application already being lodged. Hence, the sponsorship fee was payable only where the visa application had already been lodged and also only when the sponsor had lodged the visa application on behalf of the applicant. Therefore, there has been a discrepancy between what was presumed to be allowed under the regulations and what the regulations technically allowed. Sponsorship fees have therefore been collected without any specific legal basis for the collection of those fees. The regulation was recently amended to rectify that problem. This bill says that, between the date of the oversight occurring and the date of the correction taking place, when fees were collected, they were collected in a valid manner.

Labor supports this bill. It is a technical amendment in the face of an oversight which took some time for the government to pick up, but, once they did pick it up, they were up-front about it. I expect that, even after a few minutes of explaining the fascinating detail of the technical amendments, the public galleries are still empty. The bill is not particularly controversial in any way, shape or form, and the opposition is happy to support it.

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