(1) An action or proceeding, whether civil or criminal, does not lie, in respect of anything done in the exercise of a power under this Division to restrain an individual, against the Commonwealth, an officer or an individual assisting an officer if the officer or individual who does the thing acts in good faith and does not contravene regulation 5.35B.
(2) An action or proceeding, whether civil or criminal, does not lie against an individual who, at the request of an officer under subregulation 5.35C(4), conducts a search under that subregulation if the individual acts in good faith and does not contravene subregulation 5.35C(5).
5.35E Powers when boarding certain foreign ships (Act s 245F(14))
For subsection 245F(14) of the Act, the powers that the officer may exercise, consistently with the agreement or arrangement, are the powers to do the following:
(a) search, without warrant:
(i) an individual on the ship; or
(ii) the clothing of the individual; or
(iii) any property under the immediate control of the individual;
(b) take possession of any weapon for as long as the officer thinks necessary for the purposes of this regulation;
(c) restrain any individual on board the ship for as long as the officer thinks necessary for the purposes of this regulation;
(d) detain the ship for as long as the officer thinks necessary for the purposes of this regulation;
(e) bring the ship, or cause it to be brought, to a place that the officer considers appropriate.
5.35F Powers when boarding certain foreign ships on the high seas (Act s 245G(4))
(1) For subsection 245G(4) of the Act, the powers that the officer may exercise, consistently with the agreement or arrangement, are the powers to do the following:
(a) search the ship;
(b) search, without warrant:
(i) an individual on the ship; or
(ii) the clothing or the individual; or
(iii) any property under the immediate control of the individual;
(c) take possession of any weapon for as long as the officer thinks necessary for the purposes of this regulation;
(d) restrain any individual on board the ship for as long as the officer thinks necessary for the purposes of this regulation;
(e) detain the ship for as long as the officer thinks necessary for the purposes of this regulation;
(f) bring the ship, or cause it to be brought, to a port or other place that the officer considers appropriate;
(g) return to the ship any individual who:
(i) was on the ship when it was initially detained under paragraph (e); and
(ii) later leaves the ship.
(2) Subject to this Division, an officer may use such force as is necessary and reasonable in the exercise of a power under this regulation.
(3) In searching the ship, an officer must not damage the ship or any goods on the ship by forcing open a part of the ship or the goods unless:
(a) the individual (if any) apparently in charge of the ship has been given a reasonable opportunity to open that part or the goods; or
(b) it is not reasonably practical to give that individual such an opportunity.
(4) An individual may be returned to a ship under paragraph (1)(g) only if the officer or individual assisting the officer is satisfied that it is safe to do so.
Division 5.7—Charges and fees
5.36 Payment of visa application charges, and fees, in foreign currencies
(1) Payment of a fee, other than a visa application charge mentioned in subregulation (3A), must be made:
(a) in a place, being Australia or a foreign country, that is specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(b) in a currency that is specified for the purposes of this paragraph in a legislative instrument made by the Minister as a currency in which a fee may be paid in that place.
Note: For foreign country, see section 2B of the Acts Interpretation Act 1901.
(1A) The amount of the payment is to be worked out as follows:
(a) if the currency in which the amount is to be paid is specified by the Minister in an instrument in writing for this paragraph, use the exchange rate for the currency specified in the notice;
(b) if the currency in which the amount is to be paid is not specified in an instrument for paragraph (a), use the formula in subregulation (2).
(2) The formula is:
Start formula AUD times CER times 1.05 end formula
where:
AUD means the amount of the fee in Australian dollars.
CER means the highest exchange rate that is lawfully obtainable on a commercial basis for the purchase in the foreign country of Australian currency with the currency of the foreign country in a period that:
(a) begins:
(i) on the day when this regulation commences; or
(ii) on any subsequent day when that rate increases or decreases by at least 5%; and
(b) ends at the end of each day before another period begins.
(3) If the amount worked out by that formula cannot be paid wholly in banknotes of that country, the corresponding amount is that amount rounded up to the nearest larger amount that is payable wholly in banknotes of that country.
(3A) A visa application charge payment made in accordance with regulation 2.12JA must be made in Australian dollars.
(4) In this regulation:
fee means:
(a) an instalment of visa application charge; or
(b) an amount of visa evidence charge; or
(ba) an amount of nomination training contribution charge; or
(c) a fee payable under these Regulations except regulation 5.41C.
5.37 Employer nomination fee
(1) This regulation sets out the fee for an application under subregulation 5.19(1) for the Minister’s approval of the nomination of a position.
Note: Paragraph 5.19(2)(f) requires the fee to accompany the application.
(2) If the application relates to a visa in a Temporary Residence Transition stream:
(a) if the position is located in regional Australia—no fee is payable; or
(b) if the position is not located in regional Australia—the fee is $540.
(3) If the application relates to a visa in a Direct Entry stream:
(a) if the application seeks to meet the requirements set out in subregulation 5.19(10) (Employer Nomination Scheme)—the fee is $540; or
(b) if the application seeks to meet the requirements set out in subregulation 5.19(12) (Regional Sponsored Migration Scheme)—no fee is payable.
(4) If the application relates to a visa in a Labour Agreement stream:
(a) if the position is located in regional Australia—no fee is payable; or
(b) if the position is not located in regional Australia—the fee is $540.
5.37A Refund of employer nomination fee and nomination training contribution charge
(1) The Minister may refund any fee mentioned in regulation 5.37, or any nomination training contribution charge mentioned in paragraph 5.19(2)(fa), paid in relation to a nomination if:
(a) any of subregulations (2) to (9) apply; and
(b) the Minister:
(i) receives a written request for a refund from the person who paid the amount; or
(ii) considers it is reasonable in the circumstances to refund the amount to the person who paid the amount without receiving a written request for a refund.
(2) This subregulation applies if the application for approval of the nomination is made because of a mistake by Immigration.
(3) This subregulation applies if:
(a) the nomination relates to a visa in a Labour Agreement stream; and
(b) the person is a party to a labour agreement; and
(c) the person withdraws the application for approval of the nomination before a decision is made under regulation 5.19 because:
(i) the person has identified an occupation in the application that is not specified in the labour agreement as an occupation in relation to which a position may be nominated; or
(ii) the number of nominations approved by the Minister under regulation 5.19 on application by the person is equal to or greater than the number of approved nominations permitted under the labour agreement for the year.
(4) This subregulation applies if:
(a) the person withdraws the application for approval of the nomination before a decision is made under regulation 5.19; and
(b) the reason for withdrawing the application is that the information in the application used to work out the amount of nomination training contribution charge in relation to the nomination was incorrect.
(5) This subregulation applies if:
(a) the nomination relates to a visa in a Labour Agreement stream; and
(b) the person withdraws the application for approval of the nomination before a labour agreement is entered.
(6) This subregulation applies if:
(a) the nomination relates to a visa in a Temporary Residence Transition stream; and
(b) the person withdraws the application for approval of the nomination before a decision is made under regulation 5.19; and
(c) the reason for withdrawing the application is that the application, by mistake, identified the wrong occupation in relation to the position nominated.
(7) This subregulation applies if:
(a) the person withdraws the application for approval of the nomination before a decision is made under regulation 5.19; and
(b) the reason for withdrawing the application is that the application, by mistake, identified the wrong stream.
(8) This subregulation applies if:
(a) an application for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa made on the basis of the nomination is finally determined; and
(b) the grant of the visa is refused:
(i) under section 501, 501A or 501B of the Act; or
(ii) because the visa applicant did not satisfy public interest criterion 4001, 4002, 4003, 4003B, 4005, 4007 or 4020; or
(iii) because a member of the family unit of the visa applicant did not satisfy public interest criterion 4001, 4002, 4003, 4003B, 4005, 4007 or 4020.
(9) This subregulation applies if:
(a) a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa is granted on the basis of the nomination; and
(b) the visa holder fails to commence employment in the position nominated.
(10) A refund under subregulation (1) must be paid to the person who paid the amount.
(11) A refund under subregulation (1) may be paid:
(a) in Australian currency; or
(b) if the amount in respect of which the refund is being paid was paid in another currency, in that other currency.
5.38 Sponsorship fee
(1) This regulation applies to sponsorship of an applicant if the applicant is applying for a temporary visa for which sponsorship is a requirement (other than a Subclass 600 (Visitor) visa).
(2) Subject to subregulation (3), a fee is payable for seeking to be approved as a sponsor in respect of a sponsorship of an applicant to which this regulation applies, as follows:
(a) if the person or organisation is seeking to sponsor more than 10 applicants together—$3 350;
(b) in any other case—$335 for each applicant the person or organisation is seeking to sponsor.
(3) If an application for a visa is not subject to a visa application charge, or a fee under these Regulations, no fee is payable for seeking to be approved as a sponsor in respect of that application.
5.40 Fees for assessment of a person’s work qualifications and experience etc
(1) The fee payable to a non‑corporate Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013 for:
(a) an application for assessment, for the purposes of the Act, of a person’s occupational qualifications or experience (or both); and
(b) an application for assessment, for the purposes of the Act, of a person’s educational qualifications; and
(c) an application for internal review of an assessment;
is the fee specified by the Minister in an instrument in writing for this regulation.
(2) Subject to subregulation (3), if, on an internal review of an assessment, a review authority decides in favour of the applicant, the fee paid for the internal review is to be refunded.
(3) A fee paid for an internal review is not to be refunded if the applicant provided evidence for the purposes of the review that was not provided for the purposes of the application for assessment.
5.41 Fee for further opinion of Medical Officer of the Commonwealth in merits review
(1) This regulation applies to a review by the ART of a refusal to grant a visa to a person, if:
(a) under regulation 2.25A, in determining whether the criteria for grant of the visa were satisfied, the Minister was required, to seek the opinion of a Medical Officer of the Commonwealth; and
(b) the refusal occurred wholly, or in part, because in the opinion of the Medical Officer of the Commonwealth, the person did not satisfy a requirement mentioned in subregulation 2.25A(1) or (2), as the case requires; and
(c) for the review—a further opinion of a Medical Officer of the Commonwealth is required.
(2) There is payable, for the further opinion mentioned in paragraph (1)(c), a fee of $520.
5.41C Fees for performing functions relating to certain international travellers using gateway airports
(1) If, at the request of a person, the Secretary arranges for a statutory function to be performed:
(a) in a special processing area for the performance of the function at a gateway airport; and
(b) in relation to one or more international travellers using the gateway airport;
the person must pay the Commonwealth an agreed fee in respect of the performance of the statutory function and any other statutory functions in relation to those international travellers.
Note: An agreed fee in respect of the performance of the statutory function and other statutory functions may be payable in anticipation of the performance of the function.
(2) On behalf of the Commonwealth, the Secretary may make, with a person making a request described in subregulation (1), an agreement relating to the amount and payment of a fee that is or will be payable under that subregulation.
(3) In these Regulations:
gateway airport means an aerodrome (whether a proclaimed airport or not) used by aircraft on overseas flights.
international traveller using a gateway airport means a person who:
(a) arrives at the gateway airport aboard an aircraft on an overseas flight; or
(b) is due to depart from the gateway airport aboard an aircraft on an overseas flight.
overseas flight means:
(a) a flight from a place outside Australia to a place in Australia; or
(b) a flight from a place in Australia to a place outside Australia (whether or not after calling at other places in Australia).
special processing area of a gateway airport for the performance of a particular statutory function means:
(a) if the gateway airport is commonly used for overseas flights—an area of the gateway airport other than an area in which that function is performed in relation to:
(i) a majority of international travellers arriving at the gateway airport aboard aircraft on overseas flights; or
(ii) a majority of international travellers due to depart from the gateway airport aboard aircraft on overseas flights; or
(b) if the gateway airport is not commonly used for overseas flights—an area of the gateway airport in which that function is, or is to be, performed in relation to international travellers using the gateway airport.
statutory function means a function under:
(a) the Act; or
(b) regulations made under the Act.
Division 5.7A—Nomination training contribution charge
5.42 Nominations that attract nomination training contribution charge
(1) For the purposes of subsection 140ZM(1) of the Act, a nomination of a proposed occupation under paragraph 140GB(1)(b) of the Act in relation to any of the following is prescribed:
(a) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ab) a holder of a Subclass 482 (Skills in Demand) visa;
(b) a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(c) an applicant or a proposed applicant for a Subclass 482 (Skills in Demand) visa;
(d) a holder of a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa;
(e) an applicant or a proposed applicant for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa.
(2) For the purposes of paragraph 140ZM(2)(a) of the Act, the following kinds of visas are prescribed:
(3) For the purposes of paragraph 140ZM(2)(b) of the Act, nominations under regulation 5.19 are prescribed.
Division 5.7B—Indexation of certain amounts
5.42A Indexation of certain amounts
(1) If the indexation factor for an indexation day is greater than 1, the dollar amounts mentioned in the definitions of core skills income threshold and specialist skills income threshold in regulation 1.03 are, on that day, replaced by the amounts worked out using the following formula:
Start formula dollar amount immediately before the indexation day times indexation factor for the indexation day end formula
(2) The amount worked out under subregulation (1) is to be rounded to the nearest whole dollar (rounding 50 cents upwards).
Indexation factor
(3) The indexation factor for an indexation day is the number worked out using the following formula:
Start formula start fraction AWOTE amount for the reference quarter over AWOTE amount for the base quarter end fraction end formula
(4) The indexation factor is to be worked out to 3 decimal places (rounding up if the fourth decimal place is 5 or more).
Publication of indexable amounts
(5) If the indexable amount is replaced under subregulation (1) on an indexation day, the Secretary must cause the replacement indexable amount to be published on the Department’s website as soon as practicable after the indexation day. However, a failure by the Secretary to do so does not invalidate the indexation.