CHITRAKAR v Minister for Immigration
[2016] FCCA 3224
•16 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHITRAKAR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3224 |
| Catchwords: MIGRATION – Application for student visa – review of decision of Administrative Appeals Tribunal – validity of application – whether visa application is only valid upon payment of visa application charge – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 77, 82 Migration Regulations 1994 (Cth), cls.572.21, 572.22, 572.211, 572.221, pt.572 of sch.2 |
| Cases cited: Berenguel v Minister for Immigration & Citizenship (2010) 84 ALJR 251; [2010] HCA 8 Butcher v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 880 |
| Applicant: | SUMITA CHITRAKAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2772 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 1 September 2016 |
| Date of Last Submission: | 15 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2016 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the First Respondent: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2772 of 2015
| SUMITA CHITRAKAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant was the holder of a subclass 485 (Temporary Graduate) visa (“Graduate visa”) which expired on 20 March 2015. At that time she was enrolled as a student in a number of courses. On 19 March 2015, the applicant lodged an application for a student visa in order to be able to remain in Australia to complete those courses.
It was a criterion for the grant of the student visa that, at the time the application was made, the applicant was the holder, relevantly, of a subclass 485 visa. As the applicant made the application the day before her visa expired, it appears at first glance that she satisfied this criterion. However, on 22 April 2015, a delegate of the Minister found that the application had not been made until 24 March 2015 and so the criterion was not satisfied.
On review of the delegate’s decision, the Administrative Appeals Tribunal proceeded on the basis that the relevant time was the day on which a valid application was made and found that that was on 24 March 2015. That was because, although the applicant had included the details of her debit card in the application form, there were insufficient funds available to pay the visa application charge until 24 March 2015.
The issues that arise in these proceedings are whether the relevant time was the date on which there was a valid application and, if so, the date on which the visa application charge was paid.
Although these issues raise factual and legal questions of some complexity, there is authority binding on this Court which means that the application must fail. In order to qualify for the student visa, the visa application had to be valid at the time when the applicant’s Graduate visa had not expired. In order to be valid, the applicant had to have placed the Minister, through the Department, in a position from which payment of the visa charge could be acquired, through its banker, from the applicant’s bank. On the facts of this case, the applicant did not do so until 24 March 2015 and, by that time, her Graduate visa had expired.
Relevant statutory provisions
The Migration Act1958 (Cth) empowers the Minister to grant a non-citizen a visa to remain in Australia. Section 31 of the Act provides for prescribed classes of visas and authorises the making of regulations prescribing criteria for a visa or visas of a specified class. A non-citizen who wants a visa must apply for a visa of a particular class.
The applicant applied for Student (Class TU) visa. At that time, that class of visa had[1] a number of different subclasses. The particular subclass relevant to a visa applicant depended, broadly speaking, on the type of course in which he or she was enrolled. The subclass relevant to the applicant was subclass 572 – Vocational Education and Training Sector.
[1] Subclass 572 was one of the subclasses of Class TU removed by operation of the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (Cth), item 32 of sch.4 with effect from 1 July 2016.
The criteria for the grant of a subclass 572 visa were contained in pt.572 of sch.2 to the Migration Regulations 1994 (Cth). That part was divided into a number of clauses. The first set of clauses (cl.572.2) contained the primary criteria: that is, those that were to be satisfied by the primary visa applicant. They were, in turn, divided into two categories, cll.572.21 and 572.22 which bore the sub-headings “Criteria to be satisfied at time of application” and “Criteria to be satisfied at time of decision”.
Although those sub-headings do not connect grammatically to the sub-clauses that follow, they are part of the Regulations and can inform their proper construction: Berenguel v Minister for Immigration & Citizenship (2010) 84 ALJR 251; [2010] HCA 8 at [15], [26].
Clause 572.211(1), which came under the first category, provided:
If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).
This criterion had to be satisfied “at the time of the application”. First, that is the import of the relevant sub-heading. Secondly, cl.572.221(1) (under the sub-heading “Criteria to be satisfied at time of decision”) provided “[u]nless, at the time of application, the applicant met the requirements of subclause 572.211(4)”. Thirdly, that is the construction given to it by the Full Court of the Federal Court: Minister for Immigration & Citizenship v Kaur (2013) 136 ALD 226; [2013] FCAFC 66 at [13].
Sub-clause 572.211(2)(a) provided that an applicant met the requirements of that subclass if the applicant “is the holder of a visa of one” of a number of subclasses including subclass 485 (Temporary Graduate): sub-cl.572.211(2)(d)(iia) of the Regulations.
If the applicant was not the holder of a substantive visa, she could satisfy the requirements of cl.572.211(3) if the last substantive visa she held was:
(i)a student visa; or
(ii)a special purpose visa; or
(iii)a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or
(iv)a Diplomatic (Temporary) (Class TF) visa…; or
(v)a Subclass 497 (Graduate – Skilled) visa; and
(c)the application is made within 28 days (or within such period specified in legislative instrument made by the Minister)
…
The applicant’s Graduate visa did not fall within any of those descriptions[2].
[2] In particular, a “student visa” was defined by reg.1.03 of the Regulations to mean one of the following subclasses: 570, 571, 572, 573, 574, 575 and 576; and a “special purpose visa” was held by a person who had a “prescribed status” and the Minister had declared that the person was taken to have been granted a special purpose visa: ss.5, 33 of the Act.
The applicant could not have satisfied either cll.572.211(4) or (6) because she was not the holder of a subclass 560, 562, 570, 571, 572, 573, 574, 575 or 576 visa.
Accordingly, the only way in which the applicant could meet the requirements for the grant of the student visa was if, “at the time of the application” she was the holder of the Graduate visa. A person is a “holder” of a visa from the time the visa is granted to the time it ceases to be in effect: ss.5, 77, 82 of the Act. The applicant’s Graduate visa ceased to be in effect on 20 March 2015.
The Minister accepted that the applicant lodged her visa application on 19 March 2015, but argued that the application was not valid until a later date, 24 March 2015. In light of that argument, the question arises whether the “time of the application” referred to in cl.572.21 is the date on which a valid visa application is made, or whether it can be at some earlier time. In my view, it is the date on which a valid visa application is made. That view is supported, and also required, by the decision in Mohammed v Minister for Immigration & Border Protection (2015) 231 FCR 243; [2015] FCA 184.
In that case, Mr Mohammed claimed to have attempted to lodge an application for a Student (Temporary) (Class TU) visa online on 23 May 2012, but was unable to do so because of a system error. As a result of that failed attempt, the appellant lodged his visa application in person with the Department the following day. However, he had ceased to be the holder of a substantive visa on 23 May 2012 and so could not satisfy the criteria for the visa. The Tribunal affirmed a delegate’s decision not to grant Mr Mohammed a visa for that reason and an application to this Court for judicial review of the Tribunal’s decision was dismissed. In determining whether to grant an extension of time within which to appeal this Court’s decision, Perry J considered the merits of any appeal. Her Honour succinctly summarised the complicated statutory regime at [19] – [28] of her judgement. I will set that passage out in full as, in it, Perry J also deals with the issue of the visa applicant charge:
[19]In my view, there is no error in the Tribunal’s finding that no valid visa application was lodged on 23 May 2012 and that the later valid application could not apply retrospectively, as the Court below held.
[20]First, under s 45(1), subject to the Act and Regulations, a non-citizen who wants a visa “must apply” for a visa of a particular class. However, it is only where the application is “valid” that the Minister is under an obligation to consider it by virtue of s 47(1) of the Act. If an application is not a valid application, the Minister is not to consider it (s 47(3)). In this regard, s 47(4) confirms a decision that the application is not valid is not a decision to refuse the visa. It follows that the Act prevents the Minister, and therefore the Tribunal standing in the Minister’s stead by virtue of s 349 of the Act, from considering a purported visa application if it is not valid: Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 (Wu) at 261 (Carr J), 278-279 (RD Nicholson J with whom Jenkinson J agreed); Minister for Immigration and Multicultural Affairs v Hayman (1999) 90 FCR 120 (Hayman) at [21]-[22] (Finkelstein J). In this statutory scheme, there is no room for retrospective validation of an invalid application. An application is valid under s 46(1) “if, and only if” it meets the requirement for a valid application at which point the obligation to consider the application is engaged: Wu at 261 and 279-280; Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254 at 261 (Finkelstein J); Muradzi v Minister for Immigration and Citizenship [2011] FCA 976 at [34]-[35] (Tracey J).
[21]Secondly, the conditions with which a valid application must comply are set out in s 46(1) which provides that:
(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; …
(emphasis added)
[22]As to s 46(1)(a), reg 2.01 of the Regulations provides that for the purposes of s 31 of the Act, those classes set out in Sch 1 to the Regulations are prescribed classes of visa. It will be recalled that the applicant here sought the Student (Temporary) (Class TU) visa which was prescribed by cl 1222 of Sch 1 to the Regulations.
[23]As to s 46(1)(b) of the Act, s 46(3) and (4) provide for the Regulations to prescribe the criteria for the making of a valid application, including the circumstances that must exist for a valid application, and where and how a valid application must be made. Relevantly reg 2.07 of the Regulations provided as at (relevantly) May 2012:
(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:
(a) the approved form (if any) to be completed by an applicant;
(b) the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.
[24]Regulation 2.07(3) further provided that an applicant must complete an approved form in accordance with any directions on it.
[25]Under Item 1222, as the Tribunal found, applications were to be made using the approved form as specified in subitem 1222(1), relevantly Form 157A by reason of cl 1222(1)(aa)(i). Furthermore, by reason of the application having been made on Form 157A, cl 1222(3)(c)(i) and (ii) of Sch 1 to the Regulations provided that the application must be accompanied by satisfactory evidence that (relevantly) the applicant is enrolled in a registered full-time course of study or has been offered a place in a registered full-time course of study.
[26]As to the requirement in s 46(1)(ba) that to be valid, any visa application charge to be paid when the application is made, has been paid, s 45A of the Act imposes (and at the relevant time imposed) a liability upon a prospective applicant to pay the charge in the following terms:
A non-citizen who makes an application for a visa is liable to pay the visa application charge if, assuming the charge were paid, the application would be a valid visa application.
[27]The visa application charge, in turn, in relation to an application for a visa of a class in Sch 1, is prescribed for the purposes of s 45B(1) by reg 2.12C. That charge is the sum of the first instalment which is payable when the application is made and the second instalment, which is payable before the grant of the visa: reg 2.12C(1)(a) and (b) respectively. Clause 1222, in turn, prescribes visa application charges according to certain specified circumstances. The relevant charge payable when the application was made was that prescribed in cl 1222(2)(a)(iv) “in any other case”, being a first instalment comprised of a base application charge of $535.
[28]It follows the applicant was liable to pay the first instalment of the charge at the time he made his application and, by virtue of s 46(1)(b), regs 2.07 and 2.12C(1)(a), no valid application was made until that instalment of the charge was paid. If for no other reason, therefore, it cannot be said that any valid application was made until the fee was paid by the applicant on 24 May 2012, as the Tribunal found: Hayman at [21]-[22] (Finkelstein J); Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 at [70] (Weinberg J). Further and in any event I agree with the primary judge (at [29]) that the same result follows from the fact that no completed online form was lodged. This is not a case where an application was lodged but subsequently lost or not acted upon.
…
The question then is, when can one say that the visa application charge “has been paid”? That question might have an easy answer when there is a tender of cash; however, it is more complicated where, as here, payment is tendered either by way of a credit card or a debit card.
A number of cases in which this issue arose applied the decision of Lehane J in Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99; [1998] FCA 1174 (“Kirk”). That case concerned an application to the Migration Review Tribunal for review of a delegate’s decision and, in particular, whether the application was “accompanied by” a prescribed fee. The application was accompanied by a cheque which was dishonoured on presentation and a later cheque was delivered outside the time for making an application. Justice Lehane held that the dishonour of the cheque meant that the application had not been accompanied by the prescribed fee.
In Khan v Minister for Immigration & Citizenship [2009] FCA 443, Besanko J applied the reasoning in Kirk to circumstances where an applicant had given his credit card details in an application for review but attempts to process the payment were declined.
In Vumentala v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 744 the visa applicant lodged an application for a visa but did not give all of her credit card details (that is, she omitted the last 5 digits of her card number). Branson J stated the issue and relevant principle as follows:
[15] … The issue is rather, as it seems to me, whether [the visa applicant] paid the visa application charge at the time that the applicant’s visa application was received by the Adelaide Skilled Processing Centre. [The visa applicant] will have paid the visa application charge at that time, in my view, if, by completing Part K 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, American Express.
Her Honour found that the question was one of fact and that 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 an application form before a credit card payment is properly authorised.
That principle was applied by Barnes FM (as her Honour then was) in Butcher v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 880 (“Butcher”); see also Tripathi v Minister for Immigration & Citizenship (No 2) [2013] FMCA 179 and Pioneer Glass Pty Ltd v Minister for Immigration and Border Protection (2016) 304 FLR 310; [2016] FCCA 1 at [23].
In Butcher Barnes FM accepted, at [31], that given the fact that the visa application charge may be paid by methods other than cash, the Act and Regulations contemplated 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.
The relevant facts
The applicant made an application for the student visa by completing the prescribed form (Form 157A) and posting it to an office of the Department of Immigration.
Question 110 of the form asked “How will you pay your application charge?” It gave a number of options. The applicant inserted a cross against the “Credit card” option and “MasterCard” option and inserted her card number (twice) as well as the expiry date of the card.
I note in passing that, according to a later submission by the applicant to the Tribunal, the account details given by the applicant were in fact in relation to a debit card rather than a credit card. The form indicated that a debit card could not be used for payment in respect of applications lodged by mail. However, no point was taken in respect of that and I leave it to one side.
The form completed by the applicant was stamped as having been received by the Department on 20 March 2015. However, the Minister accepted that the application may have been received on 19 March 2015. It is difficult to deal with the facts on that basis; however, given the concession by the Minister, I will proceed on the assumption that the form was lodged on 19 March 2015. If I am wrong about that, the applicant could not succeed as, on 20 March 2015 she was no longer the holder of a Graduate visa and could not have satisfied the criteria for the student visa.
On 23 March 2015, the Department wrote to the applicant informing her that her application was not valid because the visa application charge had not been paid. The letter noted:
…
Please be advised that we are unable to process payment from the credit card provided on the application form as your card was ‘Declined’
…
If a response is not received within the next three working days, the application will be returned to you.
…
(Emphasis in original)
The applicant responded by email on 24 March 2015 saying (without correction):
…
Could you Please use same card as its okey with card now. You can deduct it now.
On 22 April 2015, a delegate of the Minister made a decision to refuse to grant the applicant the student visa. The delegate found that the application was lodged on 24 March 2015 and, as the applicant’s last substantive visa ceased on 20 March 2015 (and was not one of the four relevant types of visa), she did not satisfy the criteria for the grant of the visa.
The applicant applied to the Migration Review Tribunal (as it was then known) for review of the delegate’s decision.
The applicant’s migration agent sent written submissions to the Tribunal on 11 August 2015. The agent submits that the funds were not available in the applicant’s account due to an “automatic payment charged from [the applicant’s] Medical Insurance which unluckily occurred during the same time without [the applicant’s] knowledge”. The agent stated that the applicant added funds to her account on 24 March 2015 following receipt of the Department’s letter dated 23 March 2015 and that her account showed that the application charge was eventually deducted from her account on 13 April 2015.
On 8 September 2015, the Tribunal wrote to the applicant asking her to provide evidence of her claim that there were funds in her account when her application was lodged. The applicant’s agent responded on 17 September 2015 saying that $1,179.23 was prematurely charged to the applicant’s debit card on 19 March 2015. When the applicant saw that, she thought that it had been deducted by the Department for the visa application charge. When the applicant realised the mistake, she transferred $2,000 to her card on 24 March 2015. On 13 April 2015, $540.78 was deducted by the Department. The agent enclosed a copy of the statement relating to the applicant’s debit card which corroborated those claims.
That statement does not give a running balance and only shows deposit and withdrawal amounts. On 2 March 2015, there was a deposit of $500 and on 10 March 2015 a deposit of $1,300. Between 12 March 2015 and 16 March 2015 there were a number of withdrawals amounting to approximately $480. Then on 19 March 2015, there was a withdrawal in the amount of $1,179.23 described as “Debit card purchase NIB Health Funds Newcastle”. The next entry is a deposit of $2,000 on 24 March 2015. The next relevant entry is a withdrawal of $540.76 on 13 April 2015 described as “Debit card purchase Dept. of Immigration Belconnen Aus.”
The Tribunal found that the applicant did not satisfy the criteria for the grant of the student visa under cl.572.211. The Tribunal found that the application was validly made on 24 March 2015 when the funds were available to enable the application to be processed by the Department. On the basis of that finding, the Tribunal found that the applicant did not satisfy the criterion for the grant of a visa in cl.572.211 as she was not the holder of a substantive visa at the time the application was made.
For those reasons, the Tribunal upheld the delegate’s decision to refuse to grant the applicant a student visa.
There was no evidence about the arrangements between the Department and the applicant’s bank (Westpac) concerning the electronic transfer of funds from an account held by the bank to the Department. There was no direct evidence about the balance of the applicant’s account from 19 March 2015 to 24 March 2015.
However, there was no dispute that the withdrawal made by the health insurance company on 19 March 2015 meant that there were insufficient funds on that day to pay for the visa application charge. Further, there is undisputed evidence that, on 23 March 2015, an officer of the Department attempted to process the visa application charge that is, to effect a transfer from the applicant’s Westpac account to the Department’s account, the amount of the charge. That attempt failed. Further funds were deposited by the applicant in her account on the following day in order to pay the charge.
On the evidence before the Court and on the assumption that the application was lodged on 19 March 2015, I am satisfied that there were not sufficient funds available in the applicant’s debit card account to put the Department in the position of being able to require Westpac to pay the charge. For that reason, the Tribunal was correct to find that there was no valid application made on that day and, as a consequence, it was open to it to find that the applicant did not satisfy the criteria in cl.572.211.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 16 December 2016
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