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MIGRATION REGULATIONS 1994 - REG 2.12F

Refund of first instalment of visa application charge

             (1)  The Minister must refund the amount paid by way of the first instalment of the visa application charge in relation to an application for a visa if:

                     (a)  either of the following circumstances exists:

                              (i)  a circumstance mentioned in subregulation (2);

                             (ii)  a circumstance specified by the Minister in an instrument in writing for this subparagraph; and

                     (b)  the Minister:

                              (i)  receives a written request for a refund from a person mentioned in subregulation (2A); or

                             (ii)  considers it is reasonable in the circumstances to refund the amount to a person mentioned in subregulation (2A) without receiving a written request for a refund.

             (2)  For subparagraph (1)(a)(i), each of the following is a circumstance :

                     (a)  the application is unnecessary at the time that it is made;

                     (b)  the application is made because of a mistake made by Immigration;

                     (c)  the applicant dies before a decision is made on the application;

                     (d)  the application is an application made in Australia for a Tourist (Class TR) visa by an applicant who:

                              (i)  satisfies the Minister that the applicant meets the requirements of subclause 676.221(3) of Schedule 2; and

                             (ii)  is granted the further visa referred to in that subclause;

                   (db)  the application is an application made in Australia, on or after 23 March 2013, for a Subclass 600 (Visitor) visa or a Medical Treatment (Visitor) (Class UB) visa by an applicant:

                              (i)  in relation to whom the requirements of subclause 600.611(4), subclause 602.212(7) or clause 602.314 of Schedule 2 have been satisfied; and

                             (ii)  who is granted the visa to which the requirements relate;

                             (ii)  is granted the further visa referred to in that subclause;

                      (f)  the applicant's application for a class of visa mentioned in subregulation (2B) was withdrawn because there was not an approved nomination that identified the applicant;

                     (g)  in relation to an application for a class of visa mentioned in subregulation (2B), the applicant's application was withdrawn because the applicant:

                              (i)  was not required to be identified in an approved nomination; and

                             (ii)  did not have an approved work sponsor;

                     (h)  in relation to an application for a Subclass 408 (Temporary Activity) visa that met the requirement in item 3 of the table in subitem 1237(3) of Schedule 1, the applicant's application was withdrawn because the applicant did not have an approved work sponsor.

          (2A)  For subparagraph (1)(b)(i), the written request must be from:

                     (a)  the person who paid the amount (the payer ); or

                     (b)  if the payer has died, or the payer has a serious physical or mental incapacity, the payer's legal personal representative; or

                     (c)  if the payer is a bankrupt within the meaning of the Bankruptcy Act 1966 , the trustee of the estate of the payer.

Note:          See regulation 2.12K in relation to who is the person who pays an amount by way of an instalment of visa application charge.

          (2B)  For paragraphs (2)(f) and (g), the classes or subclasses of visa are as follows:

                     (a)  Subclass 407 (Training);

                     (d)  Subclass 457 (Temporary Work (Skilled));

                     (e)  Subclass 488 (Superyacht Crew);

                     (g)  Subclass 416 (Special Program);

                     (h)  Subclass 401 (Temporary Work (Long Stay Activity));

                      (i)  Subclass 402 (Training and Research);

                      (j)  Subclass 420 (Temporary Work (Entertainment));

                     (k)  Subclass 482 (Temporary Skill Shortage).

             (3)  The Minister may refund the amount paid by way of the first instalment of the visa application charge in relation to an application for a visa if:

                     (a)  the application was made because of a mistake by the applicant; and

                     (b)  the applicant withdraws the application in writing; and

                     (c)  after the withdrawal, the Minister receives a written request for a refund from:

                              (i)  the person who paid the amount (the payer ); or

                             (ii)  if the payer has died, or the payer has a serious physical or mental incapacity, the payer's legal personal representative; or

                            (iii)  if the payer is a bankrupt within the meaning of the Bankruptcy Act 1966 , the trustee of the estate of the payer.

          (3A)  The Minister may refund the amount paid by way of the first instalment of the visa application charge in relation to an application for a visa if:

                     (a)  the application is for a Temporary Business Entry (Class UC) visa; and

                     (b)  the applicant withdraws the application because the criterion in paragraph 457.223(4)(aa) of Schedule 2 (as in force before 18 March 2018) cannot be satisfied; and

                     (c)  the applicant withdraws the application in writing; and

                     (d)  after the withdrawal, the Minister receives a written request for a refund from:

                              (i)  the person who paid the amount (the payer ); or

                             (ii)  if the payer has died, or the payer has a serious physical or mental incapacity, the payer's legal personal representative; or

                            (iii)  if the payer is a bankrupt within the meaning of the Bankruptcy Act 1966 , the trustee of the estate of the payer.

          (3B)  The Minister may refund the amount paid by way of the first instalment of the visa application charge in relation to a visa application if:

                     (a)  the visa application is for:

                              (i)  a Subclass 186 (Employer Nomination Scheme) visa; or

                             (ii)  a Subclass 187 (Regional Sponsored Migration Scheme) visa; and

                     (b)  the visa application relates to a position nominated in an application (the nomination application ) for approval under regulation 5.19; and

                     (c)  the applicant for the visa withdraws the visa application in writing for any of the following reasons:

                              (i)  the nomination application, by mistake, identified the wrong occupation in relation to the position nominated;

                             (ii)  if the nomination application was made before 18 March 2018--the nomination application sought to meet the requirements of subregulation 5.19(3) (as in force before 18 March 2018), when it was more likely that the requirements of subregulation 5.19(4) (as in force before 18 March 2018) would have been met, or vice versa;

                           (iia)  if the nomination application was made on or after 18 March 2018--the nomination application is withdrawn before a decision is made under regulation 5.19 because the nomination application, by mistake, identified the wrong stream;

                            (iii)  after the visa application was made, action was taken against the nominator under section 140K of the Act for a failure to satisfy an applicable sponsorship obligation;

                            (iv)  after the visa application was made, the position ceased to be available to the applicant because the business within which the applicant was, or was to be, employed to work in the position ceased to operate actively and lawfully in Australia;

                             (v)  if the visa application is in the Temporary Residence Transition stream--after the visa application was made but before the nomination application is decided, the applicant ceased to be employed in the position in respect of which the person held a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa;

                            (vi)  if the nomination application is made before 18 March 2018 and the visa application is in the Temporary Residence Transition stream--the applicant did not satisfy the 2-year requirement in sub-subparagraph 5.19(3)(c)(i)(A) or (ii)(C) as in force before 18 March 2018 (whichever is applicable) when the nomination application was made;

                           (vii)  if the nomination application is made on or after 18 March 2018 and the visa application is in the Temporary Residence Transition stream--the applicant did not, when the nomination application was made, satisfy the 3-year requirement in paragraph 5.19(5)(e) or paragraph 5.19(5)(f) or (g) (as applicable) or any requirement for a different period of time specified for the applicant in an instrument made under subregulation 5.19(6);

                          (viii)  if the nomination application was made on or after 12 August 2018--the nomination application is withdrawn in the circumstances specified in subregulation 5.37A(3), (4) or (5); and

                     (d)  after the withdrawal, the Minister receives a written request for a refund from:

                              (i)  the person who paid the amount (the payer ); or

                             (ii)  if the payer has died, or the payer has a serious physical or mental incapacity--the payer's legal personal representative; or

                            (iii)  if the payer is a bankrupt within the meaning of the Bankruptcy Act 1966 --the trustee of the estate of the payer.

          (3C)  The Minister may refund the amount paid by way of the first instalment of the visa application charge in relation to a visa application if:

                     (a)  the visa application is for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa; and

                     (b)  the visa application relates to a nomination of an occupation under subsection 140GB(1) of the Act; and

                     (c)  the applicant for the visa withdraws the visa application in writing for any of the following reasons:

                              (i)  the nomination, by mistake, identified the wrong occupation;

                             (ii)  the nomination is withdrawn before a decision is made on the nomination under section 140GB of the Act because the nomination, by mistake, identified the wrong stream;

                            (iii)  after the visa application was made, action was taken against the nominator under section 140K of the Act for a failure to satisfy an applicable sponsorship obligation;

                            (iv)  after the visa application was made, the position associated with the nominated occupation ceased to be available to the applicant because the business within which the applicant was, or was to be, employed to work in the position ceased to operate lawfully in Australia;

                             (v)  the nomination is withdrawn in the circumstances specified in subregulation 2.73C(3), (4), (5) or (6); and

                     (d)  after the withdrawal, the Minister receives a written request for a refund from:

                              (i)  the person who paid the amount (the payer ); or

                             (ii)  if the payer has died, or the payer has a serious physical or mental incapacity--the payer's legal personal representative; or

                            (iii)  if the payer is a bankrupt within the meaning of the Bankruptcy Act 1966 --the trustee of the estate of the payer.

             (4)  The Minister must not make a refund on the basis that the applicant has died unless the request for the refund is accompanied by satisfactory evidence of the applicant's death.

             (5)  The Minister must not make a refund to the legal personal representative of a payer who has died unless the request for the refund is accompanied by satisfactory evidence of the payer's death.

             (6)  A refund under this regulation must be:

                     (a)  paid to the person who made the request for the refund; or:

                     (b)  if the refund is to be paid under subparagraph (1)(b)(ii)--paid to a person mentioned in subregulation (2A); or

                     (c)  provided to a person mentioned in paragraph (a) or (b) for payment to the applicant's deceased estate.

             (7)  If:

                     (a)  in the opinion of the Minister, there is no doubt about the identity of the payer; and

                     (b)  the Minister pays the amount of the refund to:

                              (i)  the payer; or

                             (ii)  a person mentioned in paragraph (2A)(b) or (c); or

                            (iii)  a person mentioned in subparagraph (3)(c)(ii) or (iii); or

                            (iv)  a person mentioned in subparagraph (3A)(d)(ii) or (iii); or

                             (v)  a person mentioned in subparagraph (3B)(d)(ii) or (iii); or

                            (vi)  a person mentioned in subparagraph (3C)(d)(ii) or (iii);

a receipt that is given by the person to whom the refund is paid is, for all purposes, a valid discharge of any liability of the Commonwealth in relation to the payment of the amount of the refund.

             (8)  A refund under this regulation may be paid:

                     (a)  in Australian currency; or

                     (b)  if the amount of the instalment in respect of which the refund is being paid was paid in another currency, in that other currency.



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