Migration (IMMI 18/055: Visas attracting a subsequent temporary application charge) Instrument 2018

This instrument, titled the Migration (IMMI 18/055: Visas attracting a subsequent temporary application charge) Instrument 2018, is a ministerial instrument that specifies which visa subclasses are to be treated as attracting a “subsequent visa application charge” for the purposes of particular paragraphs in the Migration Regulations 1994. The instrument is made by the Minister for Citizenship and Multicultural Affairs (Alan Tudge) (instrument header) and is dated 15 March 2018, with commencement on 18 March 2018 (ss 1-2).

Mechanically, the instrument does two primary things. First, section 6(1) specifies that the visas listed in Schedule 1 are “specified” for the purposes of paragraph 2.12C(5)(a) of the Regulations. Second, section 6(2) specifies that the visas listed in Schedule 2 are “specified” for the purposes of paragraph 2.12C(5)(c) of the Regulations. The instrument defines “Regulations” to mean the Migration Regulations 1994 (s 4), so every reference to a paragraph of the Regulations in this instrument is a cross-reference to that statutory instrument.

The Schedules list particular visa subclasses and, in many entries, identifiable streams or express exclusions. For example, Schedule 1 lists Subclass 500 (Student) but expressly excludes “Foreign affairs students; or Defence students; or students enrolled in a registered Masters Degree by Research or Doctoral degree course (including PhD marking)” (Schedule 1). Schedule 2 includes a longer list of temporary visa subclasses and, for a cluster of student-related subclasses (500 and 570-580, 590), contains express exclusions for visa-holders who “paid nil visa application charge as they were affected by provider default” or for those whose nominating student was affected by provider default (Schedule 2).

Finally, Schedule 3 repeals the earlier instrument titled VISAS ATTRACTING A SUBSEQUENT TEMPORARY APPLICATION CHARGE 2016/098 (IMMI 16/098) in full. The instrument therefore both updates the set of specified visas for the referenced paragraphs in the Regulations and removes the prior instrument from the statutory framework (Schedule 3).

This instrument does not itself set amounts, collection processes, enforcement measures, or appeal routes for any visa application charge. Its legal effect is to supply the list of visa subclasses and streams to which the statutory charging mechanism, as contained in the Migration Regulations 1994 (paragraphs 2.12C(5)(a) and 2.12C(5)(c)), must apply. That is the explicit mechanical change effected by the instrument (s 6; s 4 definition of Regulations).

This instrument operates by specification: it names visa subclasses and streams to be taken as “specified” for the purposes of certain paragraphs in the Migration Regulations 1994. The primary legal vehicle is a delegated power under the Regulations referenced in section 3: the instrument is “made under paragraphs 2.12C(5)(a) and 2.12C(5)(c) of the Regulations” (s 3). The instrument does not recreate, alter, or state the charging rule in those paragraphs; it performs the function permitted by those paragraphs, namely identifying which visas are subject to the subsequent visa application charge.

Key definitional and structural points in the instrument:

• “Regulations” is defined to mean the Migration Regulations 1994 (s 4). Therefore every cross-reference to a paragraph or Schedule of the Regulations must be read as a reference to that external instrument.

• Section 6 is the operative provision. It has two limbs: 6(1) designates the visas in Schedule 1 for paragraph 2.12C(5)(a) of the Regulations; 6(2) designates the visas in Schedule 2 for paragraph 2.12C(5)(c) of the Regulations. The instrument therefore differentiates two separate subparagraphs of the Regulations and allocates different visa lists to each.

• Schedule 1 and Schedule 2 contain the lists. Schedule 1 is concise: it lists Subclass 500 (Student) with specific exclusions (foreign affairs students; defence students; students enrolled in research Masters/Doctoral degrees including PhD marking), Subclass 590 (Student Guardian), and whole subclasses 407, 408 (with a specified caveat), 482, 600 and 676 (Schedule 1). Schedule 2 is broader and contains many temporary visa subclasses across occupational, training and visitor categories. It includes multiple entries for Subclass 402 identifying particular streams (Occupational Trainee; Research; and those granted under paragraph 402.311(a) or (b)); whole subclasses such as 401, 407, 408, 411, 415-428, 442, 457, 462, 482, 500 (with narrow provider-default exclusions), 570-576 (each with provider-default exclusions for holders who paid nil VAC), 580 and 590 (each with similar exclusions where the nominating student was affected by provider default), 600 (Tourist stream), 602, 676 and 685 (Schedule 2).

• Schedule 3 repeals the earlier instrument IMMI 16/098 in whole. That removes the earlier specification instrument from the instruments list and replaces its operative effect with IMMI 18/055.

Principal legal concept: this instrument is a specification instrument. It fits into a two-step charging regime: the Regulations create the charging power and the “subsequent visa application charge” mechanism; this instrument supplies the list of visa subclasses to which that mechanism attaches. The instrument is therefore an enabling, catalogue-style instrument, not a primary rule on fees.

The instrument’s primary external effect is on applicants and holders of the visa subclasses and streams listed in Schedules 1 and 2 because it makes those visas “specified” for the purposes of paragraph 2.12C(5)(a) or 2.12C(5)(c) of the Migration Regulations 1994 (s 6). The instrument does not itself collect money or impose a new tax; it attaches an existing charging mechanism in the Regulations to particular visa types.

Who pays: the instrument does not set the identity of the payer, the quantum of the charge, or the collection method. Those elements are governed by the Migration Regulations 1994 (which are referenced but not reproduced in this instrument). Practically, applicants for visa subclasses that are specified will face the regulatory regime (under the Regulations) that governs subsequent visa application charges; the instrument’s Schedules indicate which applicants will be inside that regime.

Who is excluded: the instrument expressly excludes identified categories in several entries. For example, Schedule 1 excludes from Subclass 500 foreign affairs students; defence students; and students enrolled in registered research Masters or Doctoral degrees (including PhD marking). Schedule 2 contains a cluster of student and student-related subclasses (500 and 570-576, 580, 590) where an express exclusion is stated for “holders … who paid nil visa application charge as they were affected by provider default” or, for some, where the nominating student was affected by provider default (Schedule 2). The Schedule 1 entry for Subclass 408 is also caveated: it applies “except where an applicant is in a class of persons specified by the Minister for the purposes of subparagraphs 1237(2)(a)(i), 1237(2)(a)(ii) and 1237(2)(a)(iii) of Schedule 1 to the Regulations” (Schedule 1). That means the instrument’s effect for Subclass 408 depends on a separate Ministerial specification under the Regulations.

Who decides: the instrument was made by the Minister for Citizenship and Multicultural Affairs and is dated and signed by Alan Tudge (instrument header). The Minister’s delegated power under the Regulations is the statutory basis; the instrument itself performs the specification power. Where the Schedule references class specifications by the Minister under Schedule 1 to the Regulations those are decisions that lie with the Minister per the cross-referenced statutory framework (Schedule 1 entry for 408).

Who else: education providers, sponsors, migration agents, and employers who interact with the listed visa subclasses will be affected indirectly because the charge regime to which these visas will be attached (under the Regulations) may change financial liabilities for applicants and possibly sponsors or nominating parties (but the instrument itself does not allocate liability terms; see s 6 and the Schedules).

This instrument’s text does not itself create extensive positive duties or define rights in the way that primary legislation typically does. Instead it performs a specification function that interacts with duties and rights created by the Migration Regulations 1994. The operative legal effects relevant to duties and rights are the following.

Duty to treat listed visas as specified: Section 6 imposes an administrative duty on the relevant decision-maker or department to treat the visa subclasses and streams in Schedule 1 as specified for paragraph 2.12C(5)(a) and those in Schedule 2 as specified for paragraph 2.12C(5)(c) of the Regulations. That is, the duty is to apply the terms of the Regulations to the listed visas. The instrument itself does not state how the department should administer the charge; it only fixes the set to which the Regulations’ charging provision must be applied (s 6; s 4 definition of Regulations).

Rights framed by exclusions: the Schedules create carve-outs that operate as de facto rights for certain persons to be outside the charge regime as specified. For instance, Schedule 1’s Subclass 500 exclusion (foreign affairs students; defence students; and students enrolled in specified research degrees including PhD marking) means persons in those categories must not be treated as attracting the subsequent visa application charge under paragraph 2.12C(5)(a) by virtue of this instrument. Likewise Schedule 2’s exclusions for holders who “paid nil visa application charge as they were affected by provider default” create an operational exemption: such holders are not to be treated as specified under paragraph 2.12C(5)(c) in relation to those subclasses (Schedule 2).

Delegation and Ministerial discretion link: the Schedule 1 entry for Subclass 408 is caveated by a cross-reference to “a class of persons specified by the Minister for the purposes of subparagraphs 1237(2)(a)(i), 1237(2)(a)(ii) and 1237(2)(a)(iii) of Schedule 1 to the Regulations.” That links the instrument’s application for some applicants to a separate Ministerial determination under the Regulations. The instrument therefore relies on and interacts with Ministerial specifications under other provisions of the Regulations, which shifts certain practical decisions to the exercise of statutory discretion elsewhere (Schedule 1).

No enforcement, amounts or payment processes specified: the instrument does not itself create procedural duties such as timeframes for payment, refund processes, or appeal rights. Those procedural duties and rights must be sought in the Migration Regulations 1994 (s 4). For practitioners, the instrument thus acts as a classificatory input to the operative charging regime; the rights and duties imposed on applicants by the charging regime are not restated here.

This instrument does not create criminal penalties, fines, or specific enforcement mechanisms itself. It is a specification instrument that identifies visa subclasses and streams for the purposes of particular paragraphs of the Migration Regulations 1994; details on penalties, enforcement, compliance sanctions, and procedural enforcement mechanisms are not contained in the text of this instrument.

Consequently, the following points are set out from the instrument itself:

• Absence of penalty provisions in the instrument: there are no sections, Schedule items, or notes within IMMI 18/055 that prescribe penalties, civil sanctions, or enforcement processes. The instrument neither creates offences nor prescribes fines or imprisonment. Any penalty or enforcement regime relevant to the “subsequent visa application charge” must therefore be sought in the Migration Regulations 1994 or in other applicable primary legislation or subordinate instruments (s 4; s 6).

• Enforcement rests with the Regulations and administering agency practices: because the instrument’s legal effect is to specify visas for the purposes of paragraphs 2.12C(5)(a) and 2.12C(5)(c) of the Regulations, any enforcement of payment obligations or sanctions for non-payment will arise from the Regulations. The instrument therefore functions as an input into a larger regulatory enforcement apparatus rather than as its own enforcement source (s 6).

• Repeal changes the applicable instrument: Schedule 3 repeals IMMI 16/098 in full. Any enforcement actions or administrative processes that relied on the earlier instrument would, after commencement, have to be aligned to IMMI 18/055’s lists. The instrument contains no transitional enforcement guidance, so administrators will need to apply existing enforcement powers under the Regulations, mindful of the Schedules’ lists and exclusions (Schedule 3).

• Discretionary elements referenced but not specified: Schedule 1’s Subclass 408 entry depends on a Minister-specified class for subparagraphs 1237(2)(a)(i)-(iii) of Schedule 1 to the Regulations. Those external discretion mechanisms will determine some enforcement boundaries. Similarly, Schedule 2’s exclusions for “provider default” require a factual finding or administrative record that a person “paid nil visa application charge as they were affected by provider default.” Enforcement therefore involves administrative determinations about whether an applicant falls within such an exclusion.

The instrument is expressly a cross-referential instrument that operates only in relation to the Migration Regulations 1994. Section 3 states that it is made under paragraphs 2.12C(5)(a) and 2.12C(5)(c) of the Regulations, and section 4 defines “Regulations” as the Migration Regulations 1994. The instrument therefore has meaning only insofar as those paragraphs exist and are operative in the Regulations. The instrument contains multiple specific cross-references to provisions in the Regulations via the Schedules:

• Paragraphs 2.12C(5)(a) and 2.12C(5)(c) of the Regulations are the immediate legal hooks that the instrument fills by specifying visa lists (s 3; s 6). The instrument does not restate those paragraphs, so the operational effect depends upon their content in the Regulations.

• Schedule 1’s Subclass 408 entry refers to a class of persons “specified by the Minister for the purposes of subparagraphs 1237(2)(a)(i), 1237(2)(a)(ii) and 1237(2)(a)(iii) of Schedule 1 to the Regulations.” That creates a direct dependency on a Ministerial specification under the Regulations and links the current instrument to other Schedule provisions and delegated decisions in the Regulations themselves (Schedule 1).

• Several Schedule 2 entries refer to visa subclass streams or conditions that are established in the Regulations, for example paragraph 402.311 (Schedule 2 entries for Subclass 402 granted to applicants who satisfied paragraph 402.311(a) or (b)). This means the instrument’s practical application requires reading those particular regulatory paragraphs to know which actual visa grants and streams are captured (Schedule 2).

• The instrument repeals the earlier IMMI 16/098 instrument entirely (Schedule 3). That direct repeal interacts with the corpus of delegated instruments governing visa charges by replacing the prior specification instrument with IMMI 18/055. Any legal analysis of which instrument applies at a particular time must therefore consider commencement dates and repeal (s 2; Schedule 3).

Beyond the Migration Regulations 1994, this instrument does not reference or purport to displace other Acts or instruments. It neither amends primary legislation nor creates conflicts with other legal instruments on its face. However, because it references classes and streams that the Regulations define, the way it interacts with other laws or obligations (for example, refund powers, debt-recovery mechanisms under finance law, or other parts of the Migration Act that affect eligibility) will be mediated by the content of those other provisions rather than this instrument.

The instrument itself provides a succinct amendment history within its text. The key chronological and amending facts contained in the instrument are:

• Date and maker: The instrument was made by the Minister for Citizenship and Multicultural Affairs, Alan Tudge, on 15 March 2018 (instrument header). It is titled Migration (IMMI 18/055: Visas attracting a subsequent temporary application charge) Instrument 2018 and may be cited as IMMI 18/055 (s 1).

• Commencement: The instrument commences on 18 March 2018 (s 2). That is the operative date from which the Schedules and repeals take effect.

• Authority: The instrument explicitly states it is made under paragraphs 2.12C(5)(a) and 2.12C(5)(c) of the Migration Regulations 1994 (s 3). Section 4 defines “Regulations” as the Migration Regulations 1994, which identifies the enabling instrument under which the Minister exercises the power to specify visa subclasses for the purposes indicated.

• Schedules: Section 5 explains that each instrument specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned (s 5). Schedule 3 contains an express repeal entry for IMMI 16/098.

• Repeal of previous instrument: Schedule 3 states: “VISAS ATTRACTING A SUBSEQUENT TEMPORARY APPLICATION CHARGE 2016/098 (F2016C01021) , 1 The whole of the instrument , Repeal the instrument.” That is an express, full repeal of the earlier IMMI 16/098 instrument. The instrument therefore replaces the previous specification instrument as at its commencement date (Schedule 3).

No other amendments to primary legislation are made by this instrument. The instrument does not amend the Migration Regulations 1994 itself; it implements a delegated function under those Regulations by specifying visa subclasses and streams. The instrument contains no explicit transitional provisions beyond the express repeal in Schedule 3, so any transitional or saving treatment would have to be found in the Regulations, in implementing guidance, or by interpretation in administrative practice.

There is no further amendment history included in the text. The document does not record any subsequent modifications or revocations beyond the stated repeal of IMMI 16/098. Any later amendments to IMMI 18/055, if they exist, are not contained in the text supplied here.

The instrument’s text contains no judicial decisions, case citations, or references to litigation. It does not record any challenges, court proceedings, or tribunal matters. The instrument names no cases and contains no narrative of prior litigation concerning IMMI 16/098 or the subject matter of subsequent visa application charges. The Schedule that repeals the earlier instrument (IMMI 16/098) does not refer to proceedings or legal disputes (Schedule 3).

From the text alone, therefore, the litigation history is silent. If a practitioner needs to know whether IMMI 18/055 (or the replaced IMMI 16/098) has been subject to judicial review, statutory interpretation in litigation, or orders by a tribunal, that information is not contained in the instrument and must be sought from external case law databases, tribunal records, or governmental registers.

What the instrument does indicate for litigation-related practice is where legal arguments would likely be focused if a challenge were mounted. Any legal dispute about the application of a “subsequent visa application charge” to a particular applicant is likely to require:

• Reference to the Migration Regulations 1994: because this instrument operates by specifying visa classes only for the purposes of particular paragraphs of the Regulations (s 3; s 6), any legal challenge to liability for a charge would necessarily involve construing the relevant paragraphs in the Regulations that set out the charge.

• Factual characterisation of excluded categories: several Schedules contain exclusions that require factual or legal characterisation (for example whether an applicant is a “foreign affairs student”, “defence student”, “a student enrolled in a registered Masters Degree by Research or Doctoral degree course (including PhD marking)”, or a person “affected by provider default”). Any litigation would therefore likely turn on whether an applicant fits the Schedule description.

• Ministerial specifications: the Schedule 1 exclusion for Subclass 408 depends on a class of persons specified by the Minister for purposes of particular subparagraphs in the Regulations. Challenges may therefore involve administrative law arguments about the existence or scope of the Minister’s specification under the Regulations.

Beyond these inferences about potential legal focus areas, the instrument itself supplies no litigation record. Practitioners must consult courts and tribunals records for any case law post-dating the instrument.

The instrument is compact, but it contains several features and cross-references that create potential traps for administrators, advisers, applicants and institutions. These “gotchas” are contained in, or flow directly from, the instrument’s text; they are practical points to verify rather than speculative criticisms.

1. The instrument does not state the charge, only who is specified

• The instrument specifies visa subclasses for the purposes of particular paragraphs of the Migration Regulations 1994 (s 6). It does not set the amount of any charge, payment methods, refund rules, or enforcement. Practitioners must consult the Regulations to know whether a specified visa actually results in a payment obligation, the amount payable, and remedies for non-payment (s 4; s 6).

2. Exclusions are precise and sometimes conditional

• Several Schedule entries exclude narrowly defined categories. For example Schedule 1’s Subclass 500 exclusion covers three discrete categories: foreign affairs students; defence students; and students enrolled in registered research Masters or Doctoral degrees, including PhD marking. Failure to classify a person correctly against these categories can result in wrongly applying a charge (Schedule 1).
• Schedule 2 repeatedly excludes visa-holders who “paid nil visa application charge as they were affected by provider default.” The operative legal effect requires evidence or administrative determination that a person was so affected. The phrase “affected by provider default” is not defined in this instrument; administrators must locate the definition in the Regulations or departmental policy.

3. Cross-references to Ministerial specifications and other regulatory paragraphs

• The Schedule 1 entry for Subclass 408 is subject to an exception tied to a Ministerial specification under subparagraphs 1237(2)(a)(i)-(iii) of Schedule 1 to the Regulations. The instrument therefore delegates practical effect to another instrument or Ministerial action under the Regulations. If a practitioner assumes the instrument alone determines the outcome for every 408 applicant, they may be mistaken. They must check whether a Ministerial class has been specified under the referenced provisions (Schedule 1).

4. Duplicate and stream-specific entries create reading complexity

• Schedule 2 lists Subclass 402 multiple times with different stream descriptions (Occupational Trainee; Subclass 402 granted to an applicant who satisfied 402.311(a); Research; and Subclass 402 granted to an applicant who satisfied 402.311(b)). Practitioners must map these entries against the concrete visa grant to determine whether a particular grant falls within the specified stream. The instrument’s tabular presentation requires careful parsing to avoid double-counting or accidental omission.

Compliance with IMMI 18/055 requires reading the instrument together with the Migration Regulations 1994 and following departmental procedures that operationalise the “subsequent visa application charge” mechanism. The instrument itself provides the list of visa subclasses and streams to which the Regulations’ charging paragraphs apply; it does not provide payment, appeals, or procedural rules. The following practical checklist outlines steps for administrative officers, migration advisers, education providers, employers, and applicants, drawn from the instrument’s text and its express cross-references:

1. Confirm the operative date

• IMMI 18/055 commences on 18 March 2018 (s 2). For any application or grant, confirm whether the event (application, grant, or payment) falls on or after this date. Note that IMMI 16/098 was repealed in whole by Schedule 3, so after commencement the lists in IMMI 18/055 are the controlling specification instrument (Schedule 3).

2. Identify the visa subclass and stream precisely

• Compare the visa subclass and the stream on the actual visa grant against the Schedules. Schedule 1 and Schedule 2 use precise subclass and stream descriptions (Schedules 1-2). For subclasses with multiple stream entries (for example Subclass 402 in Schedule 2), ensure the applicant’s grant condition or the regulation paragraph (e.g. 402.311(a)/(b)) matches the Schedule entry.

3. Apply the instrument’s exclusions

• For any candidate visa, check whether an exclusion in the relevant Schedule applies. Examples include:
  • Subclass 500 exclusions for foreign affairs students, defence students, and students enrolled in registered research Masters or Doctoral degrees (including PhD marking) (Schedule 1).
  • Schedule 2 exclusions where holders “paid nil visa application charge as they were affected by provider default” or where the nominating student was affected by provider default (Schedule 2).
  • Subclass 408 in Schedule 1 excludes applicants in a class specified by the Minister under particular subparagraphs of Schedule 1 to the Regulations; verify whether a Ministerial specification exists and whether the applicant is in that class (Schedule 1).

4. Verify “provider default” status and supporting evidence

• Where a Schedule exclusion depends on “provider default”, obtain documentary evidence or departmental confirmation that the person paid nil VAC due to such default. The instrument does not define “provider default” or specify evidentiary standards; consult the relevant paragraphs in the Regulations or departmental policy to determine acceptable documentary support (Schedule 2).