Butcher v Minister for Immigration
[2005] FMCA 880
•29 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BUTCHER v MINISTER FOR IMMIGRATION | [2005] FMCA 880 |
| MIGRATION – Application to review decision of delegate of the respondent that an application for a Class BQ Subclass 139 visa was not valid – whether applicant had paid visa application fee – credit card authorisation completed – actual amount of charge not inserted on application form. |
| Migration Act 1958, s.45A, s.45B, s.45C, s.46, s.47, s.65 Migration Regulations, 2.07, Schedule 1, Item 1128B |
| Kirk v Minister for Immigration (1998) 87 FCR 99 Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364 Vumentala v MIMIA [2004] FCA 744 MIEA v Polat (1995) 57 FCR 98 Jaswal v MIMIA [2004] FCA 787 Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529 Re Card Charge Services Limited [1988] 3 WLR 764 |
| Applicant: | PETER EDWARD BUTCHER |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2882 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 17 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Poynder |
| Solicitors for the Applicant: | Terrett Lawyers |
| Counsel for the Respondent: | Ms V. Hartstein |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That a writ of certiorari issue quashing the decision of the respondent that the applicant’s application for a Class BQ Subclass 139 visa made on 12 February 2004 is invalid.
That a writ of mandamus issue requiring the respondent to consider the applicant’s application for a Class BQ Subclass 139 visa made on 12 February 2004 according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2882 of 2004
| PETER EDWARD BUTCHER |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application in relation to a decision by a delegate of the respondent that an application by the applicant for a Class BQ Subclass 139 (Skilled – Designated Area Sponsored) visa made on 12 February 2004 was not valid.
The applicant’s application for the visa was completed on a Form 47SK as required, but one space in Part O on page 23 of the form (a space for the insertion of an amount of Australian dollars) was not completed. By letter dated 19 February 2004 the respondent returned the applicant’s application to him. The relevant portion of this letter read:
Your application is invalid because it did not meet the following criteria prescribed in Schedule 1 of the Migration Regulations:
………
The correct visa application charge of AUD$1795.00 must be included with the application (payable to CPM – DIMIA). Missing amount – see p.23.
The applicant contends that the respondent erred in law in forming the conclusion that the visa application was not valid.
The applicant is a citizen of the United Kingdom. In February 2003 he instructed his migration agent to assist him to lodge an application for a Class BQ, Subclass 139 visa. Such a visa relevantly provides for the entry of a skilled, non-dependent adult child of a sponsoring Australian citizen who resides in a “designated area”. In this case the applicant was sponsored by his father who resides in regional New South Wales. It was a requirement for a Subclass 139 visa that the applicant be less than 45 years of age at the time of application. The applicant was due to turn 45 on 14 February 2004. The applicant was aware of this looming deadline, as was his migration agent.
Initially the applicant completed a Form 47SK version 03/03. However due to delays in the processing of his application for skills assessment he had to re-sign a new version of the form (version 07/03) on which he completed all credit card details and the amount of the visa application charge which at that time was $AUS1795. During a delay in lodgement of the application (while the applicant assembled further documentation for his migration agent) his credit card expired and a new form 47SK was introduced. Hence it was necessary for the applicant to complete another form 47SK (version 11/03) with current credit card details. The applicant signed this form on 15 January 2004. It is this form which was lodged by his migration agent on 12 February 2004.
In Part O (the payment details part of the form) the applicant indicated “yes” in response to question 109 which was:
Do you have the application fee to include with your application? (check for the correct fee with any DIMIA office or the latest form 990(i) Charges on the DIMIA website).
Question 110 was not applicable and was left blank. Question 111 asked “How will you pay your application charge?” The applicant marked the box stating “credit card … give details below” indicating that he would pay the application charge by credit card. Under the heading “Payment by (tick one box only)” were boxes listing various credit cards. Beside this section was an area headed “Australian Dollars” with a box marked “A$...” No amount was inserted in this box. The applicant initially ticked the box for payment by American Express and filled in an American Express card number. He subsequently altered and initialled the form to indicate payment by a Visa card, the number and expiry date of which were inserted on the form. The applicant stated in an affidavit affirmed by him on 4 January 2005 that because he noticed his Amex card was about to reach its expiry date he had crossed out those details and ticked the Visa box and given his Visa card number. The applicant also stated:
As I was unsure as to whether the fee had been changed since I originally submitted the form, I left this section for my migration agent to complete. Unfortunately there was an oversight and this section was not completed.”
The rest of the boxes in Question 111 (identifying personal details and signature of the cardholder) were fully completed. It is not disputed that the application fee at the time of lodgement was $1795.
On 9 February 2004 the applicant’s migration agent forwarded the completed application form to the Department’s Skilled Processing Centre in Adelaide. The box marked “Australian Dollars” in Part O of the form was not completed. Contact details of the migration agent were inserted, including an agreement to the Department communicating by fax. The application form was received by the Department on 12 February 2004 (two days before the date on which the applicant would turn 45 and hence be ineligible to make a skilled application under the Migration Regulations).
However it was not until 19 February 2004 (after the applicant had turned 45) that the Department wrote to the applicant’s migration agent advising that the application was invalid because the payment box had been left empty. This letter was received by the migration agent (in England) on 2 March 2004.
In an affidavit sworn on 24 February 2005 Mr David Lloyd, the principal of the applicant’s migration agent, stated that on 4 March 2004 he had a telephone conversation with the manager of the Adelaide Skilled Processing Centre. Mr Lloyd’s recollection is that when told the decision had been made “according to the guidelines” he indicated that his client was fully aware of the cost, that it was written down in other parts of the application and that credit card details had been provided. He pointed out the adverse impact on the applicant and his family.
Mr Lloyd’s recollection is that the manager of the Adelaide Skilled Processing Centre responded:
You are right, it is an advertised figure that the client was aware of and there are far-reaching ramifications, the rest of the question was answered … If you like, put your case in writing and forward it to me. I will review the situation but I do need something in writing.
The same day the London office of the migration agent completed the Australian dollar amount in the application form and forwarded it again to the Adelaide Skilled Processing Centre together with a letter explaining that the migration agent had been responsible for making sure the correct amount was included in the form but had overlooked it. The letter asked the Department to reverse its decision under principles of natural justice, pointing out that if it had not been for the applicant’s birthday deadline it would have been able to address the mistake.
It was submitted that the applicant was eligible to apply under Subclass 139 as he had lodged his application before the deadline. The letter noted that his skills had been assessed by the appropriate assessing authority. The letter from the London branch of the Migration Bureau ended by appealing to the “renowned” national trait of “giving a bloke a fair go”.
However, by letter dated 15 March 2004 the Manager of the Adelaide Skilled Processing Centre advised the migration agent that while he sympathised with the applicant’s position he was not in a position to change the current circumstances and accept his application as one of the requirements for a skilled migration application that must be satisfied in all instances was that the applicant be under 45 years of age. The application was returned. In other words the decision in relation to the application lodged on 12 February 2004 was not revisited. Rather the Department treated the letter of 4 March 2004 and resubmitted application as a fresh application which could not be accepted as by that date the applicant had turned 45.
The applicant sought review of the decision of the respondent made on 19 February 2004 (in relation to the visa application of 12 February 2004) by application filed in the Federal Court on 9 August 2004. The matter was transferred to this court. The applicant now relies on an amended application filed on 26 August 2004. The ground in the application is “That the respondent erred in law in forming the conclusion that the application for a visa was not valid”.
The particulars are as follows:
The respondent erroneously considered that the Applicant had not paid the correct visa application charge. The respondent should have found that, by completing the credit card authorisation in question 111 of his application form, the applicant thereby paid the visa application charge despite his failure to include the actual amount of the charge in the box provided.
The legislative framework
Section 46 of the Migration Act 1958 (C’th) relevantly provides:
1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid;
………
Section 45A of the Act is as follows:
A non-citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application.
Section 45B(1) provides that the amount of visa applicant charge is the amount, “not exceeding the visa application charge limit, prescribed in relation to the application” and s.45C provides that the Regulations may make provisions in relation to various matters relating to the visa application charge including “the way, including the currency, in which visa application charge is to be paid” and “the time when visa application charge is to be paid”.
Section 47 of the Act relevantly provides:
(1) The Minister is to consider a valid application for a visa.
……
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
Section 65 of the Act provides, insofar as relevant:
After considering a valid application for a visa, the Minister:
(a) if satisfied that:
…
iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Turning to the Migration Regulations, Regulation 2.07 of the Migration Regulations relevantly provides:
(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
……
(b) the visa application charge (if any) payable in relation to an application;
……
The requirements of a valid application for a Subclass 139 visa are set out in Schedule 1 to the Migration Regulations item, 1128B which was relevantly, as follows, at the time of the application:
1128B Skilled – Australian Sponsored (Migrant) (Class BQ)
(1) Form: 47SK.
(2) Visa application charge:
(a) First instalment (payable at the time application is made) …$1,795
(b) Second instalment (payable before grant of visa) …$ Nil
It is not in dispute that an application for a visa is valid if and only if any visa application charge that the Regulations required to be paid at the time when the application is made “has been paid” (s.46 of the Migration Act 1958 and Schedule 1 to the Migration Regulations).
In other words payment of the application fee is a mandatory requirement for a valid visa application. In Kirk v Minister for Immigration (1998) 87 FCR 99 it was held in relation to a statutory requirement that an application be “accompanied” by the prescribed fee, that not only must the fee be paid within the time for the application, but also that if a cheque given in payment was dishonoured for any reason, then payment was taken not to have been made and hence the application was not accompanied by the fee.
In Jaswal v MIMIA [2004] FCA 787 Conti J had regard to the wording of s.46(1)(ba) of the Migration Act 1958 in rejecting an argument that payment of a visa application charge was not necessarily required to be made at the time of making the application (at [32]). His Honour accepted that where a cheque tendered in payment was not honoured and a subsequent payment was made by bank cheque, the fee was not paid and the application not validly made until the provision of the replacement bank cheque. He adopted the contention of the Minister that “the usual meaning of the clear words of the section do not in this case give rise to any absurd result which requires an alternative construction” (at [33]). It was also acknowledged (at [33]) that as was emphasised by a Full Court of the Federal Court in MIEA v Polat (1995) 57 FCR 98, the court cannot make an order so as to contradict the provisions of a statute by way of relieving “against non-compliance with a requirement which the statute intends shall be satisfied” (Polat at 105 and 107 per Dawes and Branson JJ).
Counsel for the respondent referred to such authorities in contending that the applicant had not met the requirements of s.46 and Schedule 1 as there was no payment of the visa application charge at the time the application was made.
However this case differs from the circumstances considered in Jaswal (in which a cheque was tendered but dishonoured) and in Polat (which addressed the issue of whether the Department was estopped by reason of the advice of an employee to the applicant that his visa application could not be “considered” until a marriage certificate was provided). In this instance no question of dishonour arises and no estoppel is raised by the applicant. Rather, it is accepted that payment of the application fee is a mandatory requirement for a valid application, but contended that this requirement was satisfied because at the time of filing of the application the applicant had placed the respondent, through the Department, in a position from which payment of the visa application charge could be required by it, through its banker, from the applicant’s credit provider, the financial institution which provided him with his “Visa” credit card.
The critical issue in this case is whether the requirements of s.46, which deal with what is a valid visa application, are met. Section 46(1)(ba) provides that, subject to the Regulations providing otherwise, an application for a visa is valid if and only if any visa application charge that the Regulations require to be paid at the time when the application is made “has been paid”. The relevant provision of the Regulations, Item 1128B in Schedule 1 to the Migration Regulations provides that the first (and in this instance only) instalment of the visa application charge is payable at the time the application is made and is a certain amount ($1795 at the relevant time). In other words the visa application charge in issue in this case was “payable” at the time the application was made. It is necessary to consider how the requirement of payment is met where a credit card is used.
In Kirk Lehane J accepted (at [103]) that:
It is well established by high authority that when a cheque is given and accepted for the purpose of paying an amount due, the amount due will be treated as paid on the date the cheque is given provided that the cheque is met on presentation; but not otherwise:
There can be no doubt that the acceptance of a payment by, cheque implies, if there be nothing to the contrary, an agreement that it shall be considered as a payment subject to the condition subsequent that if the cheque be dishonoured it shall no longer be so considered …
(Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529 at 535 per Kitto J; see also at 532, 533 per Dixon CJ and at 537 per Menzies J).
In this instance the applicant elected to pay the Department by credit card (as he was invited to do in question 111 of the Form). Given the nature of credit card transactions it is contended that, by analogy with the situation where payment is made by cheque, the migration legislation contemplates that in such a case the actual receipt of money by the Department in payment of a visa application charge will not occur until some time after the application is lodged (even if this is after any time limit on lodgement of the application).
I accept that, as contended for the applicant, given the fact that the charge may be paid by methods other than cash, the Migration Act 1958 and Regulations contemplate the possibility that actual receipt by the respondent of the money in payment of the charge will not necessarily occur until some time after the application is lodged. In this respect I also note Braganza v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 364 in which the Full Court of the Federal Court held (at [51]) that where an applicant sought a waiver of a prescribed fee, an application for review by the Migration Review Tribunal would be valid provided it was lodged within the prescribed period (so long as the fee was eventually waived or paid within a reasonable time after the waiver request was rejected). While this decision turned on somewhat differently worded provisions which required an application to be “accompanied by” the prescribed fee and related to a fee waiver application (see Jaswal at [32]) it is consistent with the approach to payment in Kirk.
As summarised by counsel for the applicant, a credit card transaction involves four different parties: the cardholder (in this instance the applicant), the issuer (in this instance the applicant’s bank or other financial institution which provided him with the “Visa” credit card in issue), the merchant (in this case the Department) and the acquirer (in this case the Department’s bank, being the Commonwealth Bank). The entity to which the financial institutions accepting and providing credit belong may be referred to as the association (“Visa”). (See Weaver and Craigie, The Law Relating to Banker and Customer in Australia, 3rd edition, 2003 [4.3020].)
In a transaction such as that in issue in the present case, where an application is made by mail (in accordance with Item 1128B(3)(aa)(i) of Schedule 1 to the Migration Regulations, by posting an application to the specified address for the Department) the applicant initiated a payment instruction by the use of the card by completion of the necessary details and insertion of the cardholder’s signature. In Re Card Charge Services Limited [1988] 3 WLR 764 at 768 by Sir Nicolas Browne-Wilkinson V-C it was suggested that:
Tendering and acceptance of the credit card in payment is made on the tacit assumption that the legal consequences would be regulated by the separate underlying contractual obligations between the seller and the credit company and the buyer and the credit company”.
In this instance on receipt of the credit card details and signed authorisation (the signature of the cardholder in Question 111 on Form 47SF) a series of transactions would take place. The Department (the “seller”) would have to present the credit card data to its bank (in this instance the Commonwealth Bank) for verification by Visa, which in turn would contact the bank of the applicant (the “buyer”) to check his available credit. The applicant’s bank would indicate to Visa that it approved or denied the transaction. Visa would relay the message to the Commonwealth Bank which would relay the message to the Department. If the transaction was authorised the Department would thereafter submit a request for payment to its bank which would relay the request, via Visa, to the applicant’s bank. The applicant’s bank would pay the Department’s bank which in turn would pay the Department, retaining a percentage of the amount as a fee for its services, which fee it would share with the applicant’s bank.
It was contended for the applicant that what was in issue in this case was the contract between the applicant and the Department and the question was whether the tender by the applicant of his credit details without completing the payment box with the actual Australian dollar amount was sufficient to amount to “payment” of the visa application fee at that time.
Reliance was placed by the applicant on the decision of Branson J in Vumentala v MIMIA [2004] FCA 744 in which an applicant’s migration agent had lodged a written application for a visa with the Adelaide Skilled Processing Centre by courier. Omitted from the application form in issue was not only any amount in the space for an amount to be given in Australian dollars but also the last five digits of the applicant’s 15 digit American Express card number. Another application for the same class of visa made by another of the migration agent’s clients was lodged with this application. In the second application form the Australian dollar amount was not inserted but all other details were complete and correct. In particular, in the second visa application form the complete number of the migration agent’s American Express card was inserted in the payment details part of the application form.
A covering letter signed by the migration agent accompanied each of the visa applications and identified the documents submitted for consideration. Amongst the documents identified was “Payment of Fee of $165 by credit card”.
It is notable in relation to the second visa application, that although the form did not include the amount of the payment intended to be made, Branson J observed at [10] that the respondent had accepted that the required visa application charge was paid in respect of that application “at the time that the application was received at the Adelaide Skilled Processing Centre”. In other words the application was accepted as validly made despite the omission of the Australian dollar amount from the form and her Honour was not called upon to consider the validity of that application.
It is the case, as pointed out by counsel for the respondent, that the second application form which was accepted by the Department as a valid application not only included the credit card details of the migration agent but also was accompanied by a letter from the agent which referred to the actual amount of the charge (although there is nothing before the court to indicate whether that was why the validity of that application was accepted). However the acceptance of the validity of that application does suggest that in some circumstances a failure to complete all payment details is not fatal to the validity of an application. Further, in Vumentala her Honour proceeded on the basis that the omission of the dollar amount of the payment from the visa application form in issue in that case was not critical, finding that the dispute turned on the significance to be attached to the incomplete American Express card number in the payment details part of the visa application form.
Branson J’s consideration of the validity of that application is instructive as to the principles to be applied in determining when a visa application charge is paid where not every credit card detail is provided on the application form.
It is also notable that in Vumentala the respondent made a number of formal admissions for the purposes of the proceedings, which included the fact that it accepted payment of visa application charges by credit card where sufficient information was provided to enable approval by the credit provider to be obtained (any such acceptance being subject to subsequent approval being given by the credit provider) and that it had a practice where sufficient information was provided in the visa application to enable approval of the credit provider to be obtained, whereby the application charge in respect of an application for a visa was taken to have been paid on the date that the application for the visa was received, provided that the credit card authorisation given in the visa application was subsequently approved. The judgment records that at the hearing the respondent also admitted that the contract between the Department of the respondent and its banker (the Commonwealth Banking Corporation) was silent as to whether the Department may alter or insert details on credit card authorisations received by it.
In those circumstances Branson J considered whether the applicant’s migration agent had paid the visa application charge at the time that the visa application was received by the Adelaide Skilled Processing Centre, finding that she would have done so at that time if:
by completing [the payment details part] of the applicant’s visa application form, she placed the respondent, through the Department, in a position from which payment of the charge could be required by it, through its banker, from [the applicant’s] credit provider.
As her Honour pointed out (at [16]) whether this was so was a question of fact to be determined having regard to all the circumstances of the particular case. Hence it was not possible “to formulate a rigid rule capable of application in every case as to the amount of information required to be provided in a visa application form before a credit card payment is properly authorised”. Branson J assessed all the circumstances of that case (including the fact that the officer of the Department responsible for processing the visa application form knew the complete details of the agent’s American Express card from the payment details part of the other application form lodged at the same time) against the respondent’s “unremarkable” admission that the Department’s contractual arrangements with its banker were silent on whether the Department may alter or insert details on credit card authorisations received by it. Her Honour found (at [19]) that in the circumstances of that case the respondent was “impliedly authorised” by the agent to record the numbers of her American Express card “obviously omitted by her in error” in the form or on such other form as ordinarily used by the Department to obtain payment of charges authorised to be paid by credit card. Hence the visa application charge was paid when the agent caused the application form to be delivered to the Department.
The respondent was, from that time, in a position to require payment of the visa application charge by American Express. She remains entitled to do so. (at [19])
The circumstances of the present case that are relevant to the question of whether the applicant paid the visa application charge at the time that his visa application was received by the Adelaide Skilled Processing Centre include the following:
(a)It is not disputed that the respondent accepts payment of visa application charges by Visa credit card subject to subsequent approval being given by the credit provider.
(b)The nature of credit card transactions is such that payment can only be made by credit card if the respondent has a practice, in cases where sufficient information is provided in the visa application to enable approval of the credit provider to be obtained, whereby the application charge in respect of an application for a visa is taken to have been paid on the date that the application for the visa is received, provided that the credit card transaction is subsequently approved. The respondent has not suggested that this is not the case. I accept that this is so. This must apply even where the approval of the credit card authorisation occurs on a date after the date on which the application for the visa is actually received by the respondent.
(c)The respondent at no time sought authorisation of payment of the application charge of $1795 from the Visa credit card in the name of the applicant.
(d)The application charge of $1795 for a Subclass 139 visa was fixed by Item 1128B(2) in Schedule 1 to the Regulations as it was at the relevant time.
(e)That the application charge was at least $1795 was known to the applicant (subject to confirmation that there had been no change in the fee since October 2003), the migration agent and the respondent. I accept that the amount of $1795 was inserted in version 07/03 of Form 47SK by the applicant in October 2003.
(f)It is “notorious” (see Vumentala at [18]) and was not disputed by the respondent that credit card payments can be authorised in circumstances where it is the merchant and not the credit card holder who inserts credit card details on the relevant authorisation form (for example over the telephone).
(g)The “Payment details” part of the relevant visa application form specifically asked whether the applicant had the application fee to include with the application. It indicated that the correct fee could be obtained from a DIMIA office or the latest form on the DIMIA website. In those circumstances the applicant indicated “yes” that he had the application fee to include with his application.
(h)The applicant not only indicated in the application form that he had the application fee to include with his application but also indicated that he would pay his application fee by current Visa credit card for which all details were provided.
(i)The applicant provided complete and correct details of his Visa card, the cardholder name, expiry date, his contact details and signed the box marked signature of the cardholder.
(j)The relevant officer of the Department in the Adelaide Skilled Processing Centre knew the complete details of the applicant’s credit card and his willingness to pay the application fee and must be taken to know the applicable visa application fee was $1795 as then prescribed in Item 1128B of Schedule 1 to the Migration Regulations.
I have assessed the significance of these circumstances against what is known of the Department’s contractual arrangements with its banker. Counsel for the respondent contended that the respondent’s banking arrangements did not allow it to require payment on incomplete credit card authorisations.
Annexed to an affidavit affirmed on 14 February 2005 by Anton Bockwinkel the solicitor with carriage of the matter for the respondent, was a document which he was instructed and believed was a “true copy of the Merchant Agreement dated November 2002 applicable to the banking arrangements between the Commonwealth Bank of Australia and the Department of Immigration & Multicultural & Indigenous Affairs”. What is annexed however, is a blank and uncompleted document entitled “Commonwealth Bank Merchant Agreement, Terms and Conditions for Card Transactions”. It is in the form of a printed standard form document. While I accept that an agreement in this form was entered into between the Department and its bank, the document before the court is not a copy of the actual merchant agreement entered into. The “Details Statement” which forms part of the agreement is not completed on the document before the court (including details such as cards the Department can accept, equipment and special facilities such as mail, telephone and internet orders). The form itself provides for a variation of the agreement by the bank giving notice in writing, although there is no evidence before the court to suggest that the standard form merchant agreement has been varied. I accept that it was not.
The standard form conditions in the Merchant Agreement deal extensively with completion of a sale transaction by use of an imprinter (which appears to be a reference to the manually operated machine in which a credit card is placed) or an electronic terminal. However the conditions say nothing in relation to transactions between a merchant and a cardholder carried out (as in this instance) by completion of credit card details in a document sent to the merchant (the Department) through the mail. The Merchant Agreement conditions do state that the merchant cannot complete a transaction (“other than a mail, telephone, standing order or internet order”) if a customer does not present a card. This provision would not prevent the Department from completing the transaction in this instance. The Merchant Agreement conditions also state that the merchant must “carry out all your obligations to the cardholder in connection with a transaction (other than an internet transaction and mail order/telephone order transaction) before you pass the transaction information to us”. This indicates that “information” must be conveyed to the bank by the merchant.
Counsel for the respondent contended that the agreement provides that a sales transaction is not valid if the sales voucher used is incomplete or illegible. Reliance was placed on paragraph 30 which states that a transaction is invalid if: … (g) “the transaction voucher is incomplete or illegible”. Transaction voucher is not defined. This is not a case in which details of a credit card were inserted by an imprinter or an electronic terminal or a voucher used to process a transaction at the time of the transaction between the merchant and a cardholder. “Voucher” is not defined in the agreement although the definition of “internet transaction” refers to paper vouchers which contain credit card details submitted by cardholders on the merchant’s website for use in internet transactions and paragraph 25 refers to a “merchant summary voucher”. While it may be that the payment details part of the visa application form could be regarded as a “mail order coupon” it has not been established that such form is a “voucher” authorised by the bank, such as a sales voucher or credit voucher or a paper voucher which is delivered to the bank containing “credit card details” submitted by card holders. Importantly the merchant agreement draws a distinction between the merchant providing “information” and “vouchers for transactions” to the bank. This suggests that where the credit card holder provides details in a document such as a visa application form (not by signing a separate voucher such as used in a retail transaction) the Department may provide “information” to the bank.
Condition 24 suggests that the Department may use an imprinter to complete a transaction (including in mail order transactions) but in such a case it would be necessary for the Department to insert relevant details on any voucher or document used in a manual imprinter or electronic terminal recording the transaction. If the Department failed to provide all necessary information to the bank on the document recording the transaction, the transaction may then be invalid under condition 30(g) as between the Department and the bank. But this would be because the Department failed to insert all details in processing the transaction by electronic terminal, on any voucher or form used in an imprinter or in information delivered by the Department to the bank electronically or in some other way. It is the case that paragraph 28 of the conditions provides that in giving information or vouchers for transactions to the bank the merchant warrants that all the particulars “in the information and vouchers are true and correct” and “the transaction is valid”, but this does not address the question of whether the transaction between the merchant and the cardholder is in fact valid as between those parties. In any event, I am satisfied on the basis of the standard form Merchant Agreement and the affidavit of Mr Bockwinkel (and this is consistent with what was admitted in Vumentala) that the Department’s contractual arrangements with its bank are silent on the issue of whether the Department may alter or insert credit card details either in visa application forms constituting credit card authorisations or on such other authority as is ordinarily used by the Department to obtain (through its bank) payment of charges authorised to be paid by credit charge.
Counsel for the respondent also contended that it would be improper, if not illegal, for the respondent to complete a credit card authorisation from an applicant without express authority to do so. However in the context of a visa application form which asked the applicant if he had the application fee to include with his application and which drew his attention to the method of ascertaining the correct fee (and in circumstances where it is acknowledged that the fee had not increased beyond the fee which the applicant understood was the minimum that he was agreeing to pay) this is not a case in which it would be improper for the respondent to complete any authorisation by inserting an amount not known to the applicant. While the respondent did not know that the applicant in fact knew what the application fee was or had been, the respondent did draw the applicant’s attention (by way of the explanation in question 109 in the application form) to the method of ascertaining what the correct fee was as a prerequisite to his answering the question as to whether or not he had that application fee to include with the application. In those circumstances where the cardholder responded “yes” to question 109 and provided full and correct credit card details and his signature I am not persuaded that it would be improper or illegal for the respondent to complete the details of the amount of the fee recorded on the latest “Form 990i. Charges on the DIMIA website”.
I am satisfied that by completing all of Part O of the visa application form (which contained an internal reference to a method of ascertaining the correct visa application fee) except the actual dollar amount of the fee in the circumstances set out above, the applicant placed the respondent, through the Department, in a position from which payment of the charge could be required by it through its banker from the applicant’s credit provider. The respondent was impliedly authorised by the applicant to record the actual amount of the visa application charge (obviously omitted in error) in Part O or indeed on such other form of authority as was ordinarily used by the Department to obtain payment of charges authorised to be paid by Visa credit card. Hence I am satisfied that the visa application charge in respect of the applicant’s visa application was paid when the application form was received by the Adelaide Skilled Processing Centre on 12 February 2004. The respondent was from that time in a position to require payment of the visa application charge by Visa. As in Vumentala she remains entitled to do so.
Counsel for the applicant submitted that if there was any doubt as to the applicability of Vumentala, the applicant relied on the implied authority under the law of contract to make alterations to documents where the executed document did not adequately or correctly reflect the agreement between the parties. It was submitted that such authority included the situation where one party executed a document with blanks and handed it over to the other party. This is not however a case in which it is necessary to have regard to the law in relation to alteration of a document as I am satisfied that, consistent with the principles in Vumentala, despite the absence of the actual dollar amount in the form, the application fee was paid in accordance with the requirements of the Migration Act 1958 and Regulations. Further, the visa application form (including the acknowledgement by the applicant that he had the application fee which was specified at the relevant time and available from the DIMIA office or on the DIMIA website) made it clear that there was no necessity to imply an omitted term as to price in the contract. The applicant by completing question 109 and providing all credit card details agreed to pay the correct application fee.
He placed the respondent in a position from which payment of the charge could be required by it from the applicant’s credit provider.
Accordingly the applicant is entitled to succeed. I note that the respondent treated the migration agent’s letter of 4 March 2004 with the resubmitted completed application form as a fresh but invalid application which was out of time as the applicant was, by then, outside the age limit for the class of visa in question. The application which is in issue in this case and which is to be reconsidered is the application made on 12 February 2004. Orders in the nature of certiorari and mandamus as sought by the applicant are appropriate. Branson J held in Vumentala (at [19]-[20]) that a declaration is not necessary or appropriate in such a case.
In these circumstances if the applicant still seeks a declaration I will hear submissions on whether a declaration is appropriate and on the question of costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 29 June 2005
7
6
2