Cabrera v Minister for Immigration
[2019] FCCA 1540
•3 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CABRERA & ORS v MINISTER FOR IMMIGRATION | [2019] FCCA 1540 |
| Catchwords: MIGRATION – Review of decision by a delegate of the Department of Immigration and Border Protection – whether delegate’s decision affected by jurisdictional error – whether regulation 2.12JA of the Migration Regulations 1994 (Cth) defines or defers the time at which a visa application is made – whether regulation 2.12JA of the Migration Regulations 1994 (Cth) is ultra vires – whether visa application was a valid application – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.45C, 46, 47, 476, 504 Migration Regulations 1994 (Cth), reg.2.12JA |
| Cases cited: Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 Plaintiff M47/2012 v Director General of Security (2012) ALJR 1372 Paull v Munday (1976) 9 ALR 254 Commonwealth and Postmaster-General v Progress Advertising and Press Agency Co Pry Ltd (1910) 10 CLR 457 Gibson v Mitchell (1928) 41 CLR 275 |
| First Applicant: | ALFONSO ENRIQUE CASTILLO CABRERA |
| Second Applicant: | ELIANA MARIA PEREZ ESPINOSA |
| Third Applicant: | FELIPE ALFONSO EDUARDO CASTILLO PEREZ |
| Fourth Applicant: | FRANCISCA MONSERRAT CASTILLO PEREZ |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 2347 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 3 June 2019 |
| Date of Last Submission: | 3 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Eugenia Anang (Christopher Levingston & Associates) |
| Amicus Curiae for the Applicant: | Mr Michael Arch (Concordia Pacific) |
| Counsel for the Respondents: | Mr Bora Kaplan |
| Solicitors for the Respondents: | Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2347 of 2017
| ALFONSO ENRIQUE CASTILLO CABRERA |
First Applicant
| ELIANA MARIA PEREZ ESPINOSA |
Second Applicant
| FELIPE ALFONSO EDUARDO CASTILLO PEREZ |
Third Applicant
| FRANCISCA MONSERRAT CASTILLO PEREZ |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of a delegate of the respondent (“the Delegate”) made on 10 July 2017 determining that the applicants’ applications for Employer Nomination (Subclass 186) visas were invalid.
The applicants’ procedural history, relevant legislation and the factual background of the matter is accurately summarised in the applicants’ submissions, as follows:
“1. This application seeks judicial review of a decision by a delegate of the Respondent, the Minister for Immigration and Border Protection, which found that the applicants’ applications for “Employer Nomination”, or “subclass 186” visas, to be invalid.
2. The delegate’s decision was notified to the applicants by letter dated 10 July 2017, and the application for judicial review was filed with the Court on 24 July 2017.
3. The finding that the visa applications were invalid was based on the delegate’s conclusion that under Regulation 2.12JA of the Migration Regulations 1994 (“the Regulations”), the visa applications charges for the visas had not been “electronically matched” (in other words, that payment of the funds transfer for the application charges had not actually been received by the Department) until after the date that the applicants’ previous visas had expired, and for that reason, the applicants’ did not meet the requirements for making valid visa applications under Item 1114B(3)(c) of Schedule 1 of the Regulations.
…
Factual Background
7. As recited in the delegate’s decision letter of 10 July 2017, the applicants held “457” visas prior to the making of the visa applications that give rise to these proceedings. Those 457 visas had an expiration date of 25 June 2017.
8. On 24 June 2017, the applicants initiated their applications for the Subclass 186 visas “online” and chose to pay the relevant visa application charges by means of an electronic funds transfer system known as “BPAY”.
9. Regulation 2.12JA provides in relevant part:
“Reg 2.12JA Payment of visa application charge for Internet application
(1) The visa application charge in relation to an Internet application must be paid by:
…
(b) funds transfer, in accordance with the instructions given to the applicant as part of making the Internet application.
…
(3) If the application charge is paid in accordance with paragraph (1)(b), the charge is taken not to have been received until the payment is electronically matched to the applicant’s Internet application form.”
10. The delegate found that:
“On 26/06/2017, BPAY payment was accepted and therefore the visa application date was set to 26/06/2017 in accordance with Reg. 2.12JA(1)(b) and Reg 2.12JA(3).”
11. It is evident from this statement that the delegate considered that the meaning of the term “electronically matched” as used in Regulation 2.12JA(3) to be that a purported funds transfer made through the facility of BPAY made for the purpose of paying visa application charges has been actually received by the Department by means of the BPAY funds transfer system.
12. It is also apparent, through the delegate’s use of the phrase “set to” in reference to the visa applications, that the delegate considered that the date that the visa applications were made was not the date that they were filed with the Department through its “online” systems (24 June 2017), but rather was the date that the BPAY funds transfer for the visa application charges was received by the Department (26 June 2017).
13. The delegate concluded that because the applicants no longer held their 457 visas as of the date that their applications were “set to”, 26 June 2017 (as again, their 457 visas had expired on the previous day, 25 June 2017), they were not holders of substantive visas when the applications were made.
14. Accordingly, the delegate found that Item 1114B(3)(c) of Schedule 1, which requires that an applicant for a Subclass 186 visa who is in Australia at the time that the application is made be the holder either of a substantive visa or of a Bridging Visa A, B or C, was not satisfied.
15. Therefore, the delegate determined that the applicants’ visa applications were invalid and would “not be assessed against the visa criteria for grant or refusal.”
(Footnotes omitted)
The proceeding before this Court
The applicants were represented before this Court by their solicitor, Ms Eugenia Anang. The applicants sought leave to rely on an Amended Application, a draft of which was filed with their submissions on 20 May 2019. The Amended Application was in the following terms:
“1. The determination to the effect that the Application lodged on 24 June 2017 was invalid is infected by jurisdictional error in its reliance upon Regulation 2.12JA of the Migration Regulations 1994. The Regulation is ultra vires the Act and is not a permissible exercise of powers by reference to sections 504 and 505 of the Migration Act 1958.
In the alternative,
2. The application lodged on 10 June 2017 was in conformity with the requirements of schedule 1, Criterion 186 in that the correct form was used and the correct fee paid. The filing fee was paid by BPay on 24 June 2017 in conformity with the procedure outlined in subregulation (1) (b) of Regulation 2.12JA and the electronic matching (‘electronically matched) occurred at the moment of the electronic lodgement and the BPAY transaction on or about 24 June 2017 or later but in any event not after midnight on 25 June 2017.3. Regulation 2.12JA is invalid because it is “unreasonable”, in the sense that it is so oppressive and capricious that no reasonable mind can justify it.”
At the commencement of the hearing leave was sought to rely on proposed Ground 3. Leave was opposed by the respondent.
The applicants’ solicitor had been the solicitors on the record since the filing of the initiating application on 24 July 2017. Directions were made by a Registrar of the Court on 16 August 2017, giving the applicants leave to file and serve an Amended Application by 28 September 2017. There has been no explanation offered or affidavit provided by the applicants’ solicitor to explain why proposed Ground 3 is sought so late.
The respondent was represented by Mr Bora Kaplan, of counsel. Mr Kaplan submitted that not only was there no explanation for the delay but that proposed Ground 3 caused “considerable prejudice” to the Minister, although Mr Kaplan did not elaborate on that submission. Mr Kaplan also submitted that proposed Ground 3 lacks merit.
Proposed Ground 3 is a bare assertion unsupported by particulars or submissions by the applicant beyond what was in their written submissions. Those submissions do not contain any explanation for the failure of the applicants to file an Amended Application in terms of proposed Ground 3. Proposed Ground 3 is not based on any legal analysis of the relevant legislative scheme. The allegation of unreasonableness appears to be based on the applicants’ principal contentions that reg.2.12JA of the Migration Regulations 1994 (Cth) (“the Regulations”) is inconsistent with the Act. The submissions seem to centre on the methods of payment rather than an examination of the scheme by which a visa application will be accepted as valid. I was not persuaded that proposed Ground 3 had sufficient merit to justify amendment at this late stage and in the circumstances referred to above.
Accordingly, leave was refused to rely on proposed Ground 3.
At the conclusion of the respondent’s submissions, leave was again sought in respect of a proposed Ground 4 contained in the draft Further Amended Application, in the following terms:
“The delegate committed jurisdictional error by misinterpreting and misapplying reg.2.12JA in so far as the delegate interpreted the Regulations as having the effect of differing [sic] the date the application was made until the date the application was electronically matched with the BPay payment.”
Leave was refused to the applicant to rely on proposed Ground 4 for the following reasons:
i)Proposed Ground 4 is based on a statement by the Delegate in its letter to the applicant dated 10 July 2017.
ii)The respondent opposed leave for the following reasons: that it is extraordinarily late in the piece; it is without explanation; the Minister would be prejudiced; and, the ground relies and depends solely on a statement made that as at the time of application, the applicant was not the holder of a substantive visa in the context of the passages cited above.
iii)There is no evidence to support that the payment was accepted other than on that date in which case the visa application is invalid. The applicant does not suggest that it has any evidence to suggest that payment was not matched in accordance with the reg.2.12JA of the Regulations on 24 June 2017 or earlier, being the timing that the applicant would need to meet in respect of his obligation under the Regulations.
iv)The respondent referred the Court to various passages in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 (“Kim”) in particular at [21], [26] and [27]. The applicant purports to say that they were taken by surprise that the Minister relies on the statement of the officer that payment was not made until 26 June 2017. That is not what I understand the respondent’s position to be.
v)The Court in Kim makes clear that the issue of the validity of the visa application under the Act is one for the Court and is to be determined objectively.
In those circumstances, it matters not the date that the officer may have stated payment was accepted, even if that language was not the language of the reg.2.12JA of the Regulations, in the absence of any evidence provided by the applicant to the contrary.
Proposed Ground 4 has insufficient prospects of success such that leave should be granted to rely upon it.
In appearing for the applicants, Ms Anang relied only on the outline of the applicants’ submissions and declined to make any oral submissions.
By those written submissions, the applicants contended that reg.2.12JA of the Regulations is invalid due to inconsistency with the Act.
In support, the applicants referred to s.504 of the Act which states, relevantly, as follows:
“Regulations
(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations:
(a) making provision for and in relation to:
(i) the charging and recovery of fees in respect of any matter under this Act or the regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations, whether or not such review is provided for by or under this Act; or…”
The applicants contended that the language in s.504(1)(a)(i) of the Act, which authorised the making of regulations concerning the charging and recovering of fees in any matter under the Act or Regulations, did not confer an express or implied power to make regulations that would result in deferring the date of the lodging of a visa application until the time when actual payment of the visa application is actually collected by the Department.
The relevant legislation is helpfully summarised in counsel for the respondent’s written submissions as follows:
“Legislation
7. As at 26 June 2017, s 45(1) of the Act provided that, subject to the Act and the Migration Regulations 1994 (Cth) (Regulations), "a non-citizen who wants a visa must apply for a visa of a particular class."
8. Section 46 of the Act sets out the requirements applicable to the validity of a visa application. It relevantly provided:
Valid visa application
Validity---general
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
…
(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
…
Prescribed criteria for validity
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; …
…
9. Section 47 relevantly provided as follows:
Consideration of valid visa application
(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.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
10. Regulation 2.07(1) of the Regulations, made pursuant to s 46(3) of the Act, relevantly provided:
Application for visa-general
(1) For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:
…
(b) regulation 2.12C and the relevant item of Schedule 1 set out:
(i) the visa application charge (if any) payable in relation to an application; and
(ii) the components that may be applicable to a particular application for the visa; and
(c) the relevant item of Schedule 1 sets out other matters relating to the application.
…
11. As at 26 June 2017, item 1114B of Sch 1 to the Regulations was the "relevant item" of Sch 1 with respect to Permanent Employment Visas. It relevantly provided:
(2) Visa application charge:
(a) first instalment (payable at the time the application is made):
…
(3) Other:
…
(c) An applicant in Australia must hold:
(i) a substantive visa; or
(ii) a Subclass 010 (Bridging A) visa; or
(iii) a Subclass 020 (Bridging B) visa; or
(iv) a Subclass 030 (Bridging C) visa.
…
12. With respect to the requirement to pay a visa application charge, s 45A of the Act provided that a non-citizen who made 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."
13. Section 45C of the Act empowered the making of regulations with respect to the payment of a visa application charge. It relevantly provided:
Regulations about visa application charge
…
(2) The regulations may…
(a) make provision for and in relation to:
…
(ii) the way, including the currency, in which visa application charge is to be paid ...
…
…
14. Section 504 of the Act conferred a general regulation-making power on the Governor-General, relevantly as follows:
Regulations
(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations:
(a) making provision far and in relation to:
(i) the charging ... of fees in respect of any matter under this Act or the regulations…
…
(iii) the way, including the currency, in which fees are to be paid …
…
15. Regulation 2.12JA of the Regulations contained provisions pertaining to the payment of a visa application charge for a visa application made over the Internet. It relevantly provided:
Payment of visa application charge for Internet application
(1) The visa application charge in relation to an Internet application must be paid by:
…
(b) funds transfer, in accordance with the instructions given to the applicant as part of making the Internet application …
…
(3) If the visa application charge is paid in accordance with paragraph (1)(b), the charge is taken not to have been received until the payment is electronically matched with the applicant's Internet application form.”
The applicants submitted that insofar as reg.2.12JA of the Regulations purported to define or defer the time of the making of a visa application until payment or a visa application charge is in fact received by the Department, there was no source or the authority to do so anywhere in the text of the Act.
Accordingly, the applicants submitted that reg.2.12JA purports to go beyond the boundaries of the rule making powers specifically provided for in s.45C of the Act and is therefore not a valid regulation.
In support the applicant referred to Plaintiff M47/2012 v Director General of Security (2012) ALJR 1372, where the High Court of Australia held that a regulation that is inconsistent with the Act is a regulation that is not valid. The applicants referred to the reasons of French J at [72] where His Honour held that a visa refusal predicated on an invalid regulation is one that is affected by jurisdictional error.
Counsel for the respondent submitted that he understood the applicant to be submitting that the Act does not empower reg.2.12JA of the Regulations because there is no section under the Act to support the making of that regulation. The applicant submits that the regulation defers the time that the application is made.
On 10 July 2017, an officer of the Department wrote to the first named applicant in the following terms:
“Dear Alfonso Enrique CASTILLO CABRERA
Notification of invalid application for a Employer Nomination (subclass 186) visa
The applications for the following applicants have been assessed as invalid.
Name Date of birth Alfonso Enrique
CASTILLO CABRERA25 April 1962 Eliana Maria PEREZ ESPINOSA 02 December 1963 Felipe Alfonso Eduardo CASTILLO PEREZ 01 October 1998 Francisca Monserrat CASTILLO PEREZ
20 March 1992
The application made by the following applicant was not valid.
Client Name Alfonso Enrique CASTILLO CABRERA Date of Birth 25 April 1962 Date of Decision 10 July 2017 Item 1114B(3)(c) of Schedule 1 to the Migration Regulations 1994 requires that an applicant in Australia must hold a substantive visa or a Bridging A visa (subclass 010) or a Bridging B visa (subclass 020) or a Bridging C visa (subclass 030).
Your application for a visa is invalid because it did not meet Item 1114B(3)(c). That provision required you to hold a substantive visa or a Bridging A visa (subclass 010) or a Bridging B visa (subclass 020) or a Bridging C visa (subclass 030) if you are in Australia.
On 24/06/2017, you initiated your application online and selected to pay the visa application charge via BPAY.
Departmental records indicate that your 457 visa expired on 25/06/2017.
On 26/06/2017, BPAY payment was accepted and therefore the visa application date was set to 26/06/2017 in accordance with Reg 2.12JA(1)(b) and Reg 2.12JA(3).
As at the time of application on 26/06/2017, you were not a holder of a substantive visa or a Bridging A visa (subclass 010) or a Bridging B visa (subclass 020) or a Bridging C visa (subclass 030), you do not meet Item 1114B(3)(c) of Schedule 1.”
(Emphasis Added)
Counsel for the respondent submitted that the officer’s understanding has no legal force or effect in itself as the question of validity is an objective one and not a matter to be determined administratively. The officer was not purporting to exercise any statutory power. Rather, the officer was merely stating an understanding about the validity of the visa applications.
Counsel for the respondent submitted that if the officer’s understanding was wrong and the visa applications were valid, the applicants would be entitled to a writ of mandamus to require the Minister to consider their application pursuant to s.47(1) of the Act.
In support, counsel for the respondent referred the Court to Kim at 528 [27] per Yates, Robertson and Wigney JJ as follows:
“27.The consequence is that the validity of the visa application is a question which the Court should decide. It is of course competent for an officer, including the Minister, to form a view about the validity of a visa application for himself or herself but ultimately it is for the Court to resolve any controversy as to that question. We accept the appellant Minister's submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter. We also accept the appellant Minister’s submission that a person who has made a valid visa application complying with the statutory requirements is at least prima facie entitled to mandamus to require the Minister to consider it.”
Counsel for the respondent proceeded to make submissions on why reg.2.12JA(3) of the Regulations is not invalid, as alleged by the applicant.
The respondent submits that the applicants mischaracterise the effect of reg.2.12JA of the Regulations in that reg.2.12JA(3) of the Regulations does not define or defer the time at which a visa application is made. The respondent submitted that it does no more than prescribe the methods by which a visa application charge is to be paid and identifies the time at which such charge has been paid for the purposes of s.46(1)(ba) of the Act.
The respondent submits that reg.2.12JA(3) of the Regulations is a deeming provision in that it deems the time of payment to be the time at which the correct amount of the visa application charge is received and electronically matched to the applicant’s internet application form. It does not operate to the effect that a charge paid on a particular day is taken not to have been paid on that day but rather on some other day. In other words, the respondent submits that the regulation deems the time at which payment from the applicant is made but it does not deem payment to be on day ‘x’ when it was made on day ‘y’.
Counsel for the respondent summarised the relevant provisions in the Act capable of supporting reg.2.12JA(3) of the Regulations as follows:
“25. Regulation 2.12JA(3) is capable of being supported by at least any or all of the following provisions in the Act.
·Section 46(3) of the Act, which provides that the Regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application. The impugned regulation requires, as a condition of the validity of a visa application made on the Internet, that any payment made by funds transfer be matched electronically to the applicant's visa application form.
·Section 46(4) (a), which provides that, without limiting subs (3), the Regulations may prescribe the circumstances that must exist for an application to be valid. Regulation 2.12JA(3) may be seen as requiring a particular circumstance to exist before an application made on the Internet for which the visa application charge is paid by funds transfer is valid, namely, that payment be matched electronically to the applicant's application form.
·Section 45C(2)(a)(ii), which provides that the Regulations may make provision “for” and "in relation to the way … in which visa application charge is to be paid". Importantly, this section does not merely authorise the making of regulations for the way in which a visa application charge is to be paid, reg 2.12JA(l )(b) being one such provision; it is broader than that, as it also empowers the making of regulations in relation to the way in which a visa application charge is to be paid. In this connection, it was held in Paull v Munday (1976) 9 ALR 245 that a power to make delegated legislation "with respect to" (a phrase that is synonymous with "in relation to") matters specified in the empowering provision gives a wider regulation-making power than if the word "for" is used. Regulation 2.12JA(3) can comfortably be characterised as a regulation that relates to the way in which a visa application charge is to be paid in so far as it identifies the time at which that charge is paid.
·Section 504(1) of the Act, which empowers regulations to be made "which are necessary or convenient to be prescribed for carrying out or giving effect to the Act''. A power such as s 504(1):
…will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions…
The word "necessary" in this context "may be construed liberally, not as meaning absolutely or essentially necessary, but as meaning appropriate, plainly adapted to the needs of the [department administering the legislation] - to "the carrying out" of its "efficient administration"". The word "convenient" may well extend the scope of what might not otherwise be regarded as a sufficiently wide general regulation-making power.
The identification of the time at which payment of a visa application charge by utilising a particular means of payment, viz. funds transfer, is, plainly, a subsidiary means of carrying into effect provisions such as s 46(1)(ba) - which requires, as a condition of the validity of a visa application, payment of a visa application charge - or is incidental thereto. Regulation 2.12JA(3) does not widen the purposes of the Act, add new and different means of carrying them out, or extend the Act into a further field of regulation. It is merely an "elaboration ... or a fulfilment of the plan or purpose which the main provisions of the Act [such as s 46] have laid down", being the requirement to pay a visa application charge. It is necessary (that is to say, appropriate) to give effect to the visa application charge scheme established under the Act. At the very least, it is convenient "from the standpoint of administration" as it specifies an objective method by which the time at which a charge has been paid can be ascertained.
·Sections 504(1)(a)(i) and (iii) empower regulations to be made, relevantly, "in relation to" "the charging … of fees in respect of any matter under the Act or the regulations" and "the way … in which fees are to be paid". Regulation 2.12JA(3) is capable of being supported by either or both of those provisions, as it "substantially relate[s] to" the subject matter of requiring payment of a visa application charge or the manner in which such charge is to be paid.”
At the conclusion of the respondent’s submissions, the applicants appeared to agree with the submissions of counsel for the respondent in relation to those parts of the Act that support the regulation.
In the explanatory memorandum provided by the respondent, it is stated that:
“Payment will not be deemed to have been made until the correct amount of the visa application charge is received and electronically matched to the applicant’s internet application form.”
In short:
a)Section 46(3) of the Act provides that regulations may prescribe criteria for the validity of an application. Regulation 2.12JA of the Regulations is a condition of the validity of the visa application.
b)Section 46(4)(a) of the Act provides that the Regulations may prescribe the circumstances that must exist for an application to be made.
c)Reg.2.12JA of the Regulations provides that if the visa application charge paid by funds transfer (as in this case by BPAY) then payment of the charge is taken to have been received only when the payment amount is electronically matched to the applicant’s internet application form.
d)By so doing, reg.2.12JA of the Regulations is prescribing a circumstance that must exist for the application to be valid, namely that payment of the charge is received only when the payment amount is electronically matched to the applicant’s internet application form.
e)Section 45C(2)(a)(ii) of the Act provides that the Regulations may make provision for and in relation to the way in which a visa application charge is to be paid. I accept the submission of the respondent that the words “in relation to” are broader than the word “for” (see Paull v Munday (1976) 9 ALR 254 at 251).
As stated above, I accept that reg.2.12JA of the Regulations regulates the way in which the visa application charge is to be paid. It does so by identifying the time at which the charge is paid.
Section 46(1)(ba) of the Act provides that an application for a visa is valid if and only if, subject to the Regulations providing otherwise, any visa application charge that that Regulations require to be paid at the time when the application is made, has been paid.
Section 504(1) of the Act empowers regulations to be made “which are necessary or convenient to be prescribed for carrying out or giving effect to the Act”. I accept that the word “necessary” may in this context may be construed liberally and not as meaning absolutely or essentially necessary but as meaning appropriate to the needs of the Department in carrying out its efficient administration (see Commonwealth and Postmaster-General v Progress Advertising and Press Agency Co Pry Ltd (1910) 10 CLR 457 at 469 per Higgins J). I also accept that the word “convenient” may well extend the scope of what might otherwise be regarded as a sufficiently wide regulation making power (see Gibson v Mitchell (1928) 41 CLR 275 at 280 per Higgins J).
I accept the respondent’s submission that the identification of the time of payment of a visa application charge by funds transfer is as a subsidiary means of carrying into effect provisions such as s.46(1)(ba) of the Act. That section requires payment of a visa application charge as a condition of the validity of the visa application.
The visa application charge scheme is laid out in reg.2.12JA of the Regulations and specifies an objective method by which the time at which a charge has been paid can be ascertained.
Regulation 2.12JA(3) has the effect that payment of a visa application charge in relation to an Internet application done by way of funds transfer is taken not to have been received until the payment is electronically matched to the applicant's Internet application form.
As stated above, s.504(1)(a)(i) of the Act states that regulations may make provision for and in relation to the charging and recovery of fees in respect of any matter under the Act or Regulations. Section 504(1)(a)(iii) of the Act provides that regulations may provide the way in which fees are to be paid.
I accept the respondent’s submission, that in the circumstances, reg.2.12JA(3) of the Regulations is capable of being supported by either or both of s.504(1)(a)(i) and s.504(1)(a)(iii) of the Act, as each substantially relates to the subject matter of requiring payment of a visa application charge or the manner in which such charge is to be paid.
The only evidence before this Court is that contained in the Court Book filed on 30 August 2017 and marked Exhibit 1R. At page 24 of Exhibit 1R, in a letter from an officer of the Department, dated 10 July 2017, the officer states the following facts:
i)On 24 June 2017, the first named applicant initiated an application online and selected to pay the visa application charge by BPAY.
ii)On 25 June 2017, the applicants’ 457 visa expired.
iii)On 26 June 2017, the BPAY payment was accepted.
iv)The visa application date was set to 26 June 2017 expressed by the officer to be “in accordance with Reg 2.12JA(1)(b) and Reg 2.12JA(3)”.
Under Item 1114B(3)(c) of Sch.1 to the Regulations, the first named applicant was required to hold a substantive visa or a bridging visa. As at 26 June 2017, the first named applicant held neither.
Accordingly, the first named applicant did not meet Item 1114B(3)(c) of Sch.1 to the Regulations and his application for a visa was therefore invalid.
There is no evidence before this Court to suggest that those factual assertions by the officer of the Department were false. Moreover, there is no evidence before the Court to suggest that the visa application charge was matched to the applicants’ internet application form on or before 24 June 2017.
Further, there is no evidence to suggest that “matching” involves any human intervention, or that it involves anything other than an electronic mechanism by which the Department receives notification of the funds.
For the reasons given above, the regulation is valid and is not ultra vires. Regulation 2.12JA(3) is not inconsistent with the Act.
The question of the validity of the visa application made by the first named applicant is an objective question for this Court as stated in Kim and it is incumbent on the applicants who seek judicial review remedies to establish that their application was not invalid.
Accordingly, the proceeding before this Court commenced by way of application filed on 24 July 2017 should be dismissed with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 3 July 2019
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