TSS nomination refusal – can I receive a refund (including for the associated visa application)?

The Temporary Skill Shortage (Subclass 482) (TSS) visa involves both a nomination and a visa application. Both applications are regulated by the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations) and their associated costs include:

• nomination: a nomination fee and a Skilling Australians Fund (SAF) Levy;
• visa: a Visa Application Charge (VAC).

When a nomination application is refused, the nomination fee and SAF Levy cannot be refunded.

Can the VAC be refunded?

Under 2.12F(1) of the Regulations, the Minister of Home Affairs (Minister) must refund the first instalment of the VAC where:

1. a ‘circumstance’ exists; and
2. the Minister receives a written request for a refund (or the Minister considers it reasonable to refund without receiving the written request).

What are the ‘circumstances’ where the Minister must refund VAC?

The ‘circumstances’ that exist are defined in the Regulations as:

1. an application is unnecessary at the time that it is made;
2. an application is made because of a mistake made by immigration;
3. an applicant dies before a decision is made on the application;
4. an application is made in Australia for a Tourist (Class TR) visa by an applicant who satisfies certain requirements;
5. an application is made in Australia, on or after 23 March 2013, for a Visitor (Subclass 600) visa or Medical Treatment (Visitor) (Class UB) visa, by an applicant who satisfies certain requirements;
6. an applicant’s application for a Training (Subclass 407), Temporary Work (Subclass 457), Superyacht Crew (Subclass 488), Special Program (Subclass 416), Temporary Work (Subclass 401), Training and Research (Subclass 402), Temporary Work (Subclass 420), or a Temporary Skill Shortage (Subclass 482) visa has been withdrawn because there was not an approved nomination that identified the applicant;
7. a Training (Subclass 407), Temporary Work (Subclass 457), Superyacht Crew (Subclass 488), Special Program (Subclass 416), Temporary Work (Subclass 401), Training and Research (Subclass 402), Temporary Work (Subclass 420), or a Temporary Skill Shortage (Subclass 482) visa, was with withdrawn because the applicant either was not required to be identified in an approved nomination and did not have an approved work sponsor;
8. an application for a Temporary Activity (Subclass 408) visa that met certain requirements was withdrawn because the applicant did not have an approved work sponsor; or
9. any other circumstance listed in the legislative instrument.

In short, a circumstance where a VAC must be refunded includes where a TSS nomination application was refused, the associated visa application has been withdrawn, and a written refund request has been made to the Minister.\

How do I make the refund application?

If the visa application is already lodged and processing, the Department of Home Affairs (Department) will send an ‘invitation to comment’ which outlines that:

• your visa application cannot be approved;
• you cannot link your visa application to a new nomination application.

You will have 28 days to provide the Department with a response and/or withdraw your visa application. You won’t be able to request a visa refund until you have withdrawn your visa application.

Once withdrawn, you will be eligible to request a refund for the VAC payment – this includes for the primary visa applicant and any additional visa applicants included in the application.

After the visa application has been withdrawn, the Department may refund the visa fees where:

1. they receive a written request for a refund from the person who paid the visa fees; or
2. they consider it reasonable in the circumstances to refund the amount.

It is not clear when the Minister would consider a refund reasonable without a request.

If your visa application or payment was made through ImmiAccount, you can request your visa refund on ImmiAccount by:

1. Logging into your ImmiAccount;
2. From the ‘My Payments’ drop-down tab, select ‘Manage Payments’;
3. Previous payments and their status will be displayed;
4. If the payment status in ImmiAccount is ‘Credit’ or ‘Paid’ a refund can be requested.
5. To request a refund:

1. 1. From the actions menu, select the ‘Request Refund’ option.
   2. A new screen will display that allows you to begin your refund request.

If your payment was not made on ImmiAccount, you can request your refund by:

1. Completing Form 1424 – Refund request
2. Sending the completed form to the office processing your application. If you don’t know the location of the office processing your application, send the completed form to your nearest office.

As part of your refund application, you must include supporting documentation which can include:

• bank statement (showing the transaction);
• tax invoice/receipt of the visa application;
• acknowledgement of withdrawal of visa application.

How long until I receive my refund?

The Department can take some time to process refund requests as there is no standard timeframe to process the request and each refund is individually assessed.

More information?

At Hannan Tew Lawyers, we have assisted various individuals seeking assistance with their 485 and 482 visa applications. If you need legal assistance or have an immigration related query, get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484.

This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up to date information.