Amendment to Discretionary Refund Provision Under Regulation 2.12F
17 October 2007 - Legislation change
Client summary
From 17 October 2007, the Migration Regulations 1994 ('the Regulations') are amended to rectify an unintended consequence to the refund power made by the Migration Amendment Regulations (No. 9) 2007, which prevented the Minister issuing refunds where applicants apply for visas by mistake, unless they applied for a Temporary Business Entry (Class UC) visa.
These changes will rectify the unintended consequence and restore the refund power retrospectively from 10 September 2007.
Specifically, the amendment clarifies the two circumstances in which the Minister may refund the amount paid by way of the first instalment of the visa application charge ('VAC') in relation to an application for a visa.
Firstly, the amendment provides that the Minister may refund the first instalment of the visa application charge in relation to an application for a visa if the application was made because of a mistake by the applicant, and the applicant withdraws the application in writing and after the withdrawal the Minister receives a written request for a refund from:
- the person who paid the amount (the payer)
- if the payer has died, or has a serious physical or mental incapacity, the payer's legal personal representative
or - if the payer is bankrupt within the meaning of the Bankruptcy Act 1966, the trustee of the estate of the payer.
Secondly, the amendment provides that the Minister may refund the VAC for an application for this visa made on the basis of an Australian business sponsorship or overseas business sponsorship under Temporary Business Entry (Class UC), if the applicant withdraws the application in writing because the applicant cannot satisfy the time of decision criteria, due to the application being based on an approved nomination of an activity in which the applicant is to work which, at the time of decision, no longer corresponds to the tasks of an occupation specified in a relevant Gazette Notice. The refund can only be given in this circumstance if, after withdrawal of the application, the Minister receives a written request for a refund from:
- the person who paid the amount (the payer)
- if the payer has died, or has a serious physical or mental incapacity, the payer's legal personal representative
or - if the payer is bankrupt within the meaning of the Bankruptcy Act 1966, the trustee of the estate of the payer.
Affected legislation
The following provisions of the Regulations are amended:
- Regulation 2.12F.
Additional information:
- The amendments apply retrospectively from 10 September 2007.
Instructions: PAM3: Div 2.2A will be amended to reflect these changes.