Gotcha Victoria Pty Ltd (Migration)

[2020] AATA 3404

Gotcha Victoria Pty Ltd (Migration) [2020] AATA 3404 (29 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gotcha Victoria Pty Ltd

CASE NUMBER:  1923481

DIBP REFERENCE(S):  BCC2019/3745312

MEMBER:Andrew George

DATE:29 June 2020

PLACE OF DECISION:  Darwin

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 29 June 2020 at 6:10pm

CATCHWORDS

MIGRATION – nomination of a position (employer nomination) – review application out of time – accompanied by the prescribed fee – disputed transactions with bank – no jurisdiction

LEGISLATION

Migration Act 1958, s 347
Migration Regulations 1994, rr 4.10, 4.13

CASES

Khan v Minister for Immigration and Citizenship [2009] FCA 443
Kirk v MIMA (1998) 87 FCR 99

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant lodged an application for review of a decision of a delegate of the Minister for Immigration, dated 8 August 2019, to refuse a visa nomination under the Migration Act 1958 (the Act).

2. The review application form was lodged online with the Tribunal on 22 August 2019 at 3:21:35pm Australian Eastern Standard Time. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994 (the Regulations), this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 29 August 2019. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99.

4. The material before the Tribunal is that the applicant payed the amount of $1,787 by credit card on 22 August 2019 at 3:21:35pm Australian Eastern Standard Time. This was concurrent with the online lodgement of the review application. The tax invoice/receipt number was 923415402622.

5. The Tribunal has before it a Commonwealth Bank document dated 17 October 2019, addressed to Ms Liang Zhang. This letter commences by saying, “Thanks for getting in touch with us about the disputed transactions shown below. We will refund this money to your account within the next 3 business days”. Two transactions are listed, both dated 22 August 2019 for $1,787 to the Tribunal. No other transactions are listed. The Tribunal surmises that the two payments for $1,787 relate to Gotcha Victoria Pty Ltd’s visa nomination and Ms Hazelin Su Hui Ng’s related visa application, although the second payment is immaterial in this case.

6. On 21 October 2019, the Commonwealth Bank wrote to the Tribunal notifying it that it was reversing the relevant transaction of $1,787 of 22 August 2019 and returning this sum to the cardholder.

7. What followed next is a series of correspondence between the Tribunal and the applicant, through the applicant’s representatives. This culminated with a letter dated 6 April 2020 from the applicant’s representatives who wrote, in part:

   “We submit that the reason GV [the applicant] did not pay the application fee on time was because the credit card nominated for the application payment was stolen and the bank had advised GV to cancel the card to avoid its misuse. The bank records further show that two payments from the abovementioned credit card to the AAT were disputed transactions and in October 2019, the bank acknowledged that would investigate these transactions and rectify the matter.”

8. The Tribunal accepts the submission that the applicant did not pay the application fee on time.[1] The effect of the reversed transaction is that the payment of the prescribed fee was void ab initio.

   [1] Khan v Minister for Immigration and Citizenship [2009] FCA 443, [17] (Besanko J).

9. The material before the Tribunal indicates that Ms Zhang subsequently submitted her credit card details to the Tribunal on a form to pay $1,787. That form is undated, and no case number is given. On 11 December 2019, at 2:49pm, the Tribunal processed payment and receipt number 149052 was issued. This payment occurred outside of the prescribed, being after 29 August 2019. It is not a valid payment for the purposes of s.347(1)(b) of the Act and r.4.10 of the Regulations. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

10. The Tribunal does not have jurisdiction in this matter.

    Andrew George
    Member