Hanna (Migration)

[2021] AATA 5488

Hanna (Migration) [2021] AATA 5488 (26 June 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Joseph Hanna

CASE NUMBER:  2106303

DIBP REFERENCE(S):  BCC2021/575392

MEMBER:  Jennifer Cripps Watts

DATE:  26 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter

Statement made on 26 June 2021 at 12:02pm

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – subclass 602 – prescribed fee was not paid within the prescribed period – reasonable attempts had been made to access payment –invalid application – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 338, 347, Schedule 2

Migration Regulations 1994, rr 4.10, 4.13

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration (‘the delegate’), dated 12 May 2021, to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

1. The review application was lodged by online form on 12 May 2021. 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.

1. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, 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 21 May 2021. The fee for the application for review of the primary decision must be paid within the prescribed period.

1. The applicant is represented at the Tribunal by a legal practitioner registered in the state of New South Wales, Mr Sam Issa (‘the representative’).

1. Applications for review of a decision to refuse or cancel a visa, in the Migration and Refugee Division(‘MRD’), can be made on an M1 form, for applicants not in detention, or an M2 form, for applicants who are in detention. The applicant was in detention when he lodged the review application. His application was made online with an M2 form at 9:52am on 12 May 2021 and included, among other things but relevantly, the following information entered by the applicant:

a.on the first page of the form, the decision to be reviewed, refusal of a subclass 602 visa

b.date of the decision to be reviewed,12 May 2021 (decision not provided)

c.the response ‘Yes’ to the question, ‘Are any of the applicants subject to the decision in immigration detention?’

d.and location, ‘Villawood Immigration Detention Centre, VIDC’

e.the statement and following question, ‘NOTE: If you are seeking a review of a decision other than the decision to refuse to grant or cancel a bridging visa, select the No option. Are any of the applicants subject to this decision in immigration detention as a result of a decision by the department to refuse to grant or to cancel a bridging visa’ was answered ‘Yes’

1. On the basis of the information provided in the form, while acknowledging that the applicant had indicated at the beginning of the form that the decision to be reviewed was a subclass 602 visa that was refused on 12 May 2021, no fee request was generated when the form was completed. As a rule, an application for review of the refusal of a subclass 602 visa does require payment of a fee. But relevantly, applicants in detention who apply for review of a decision to refuse or cancel a bridging visa are not required to pay a fee. The form appears to have interpreted the applicant had applied in the latter of these two circumstances on the basis of the answers that were progressively entered into the online application form.

1. The error, that a fee did need to be paid, was picked up manually by a Tribunal officer. This is a matter that a registered migration agent or representative legal practitioner should be aware of, in any event. On 18 May 2021, at 10:24am, the Tribunal wrote to the applicant and sent the correspondence to his representative. In the letter, the Tribunal informed the applicant that it appeared he had not lodged a valid application for review on 12 May 2021, because he had not paid the application fee of $1,826. A request was made in the letter for the applicant to fill out an amended M1 form including payment details and the case number reference. An M1 form was attached to the Tribunal’s letter. As a courtesy, the Tribunal also attached a form that the applicant could complete and return if he wished to request a fee reduction.

1. The Tribunal’s letter, dated 18 May 2021, referred the applicant to the Department notification, relating to the refusal of his subclass 602 visa, that ‘should state the time limit for your particular case’, and informed him that a valid review application must be received within that time limit.   The representative responded by phone shortly after receiving the letter and pointed out that the form originally used to make the review application, an eM2 MRD form, was the right form and that the applicant did not need to complete and return the M1 form that had been sent earlier. The Tribunal acknowledges that he was correct about this. The applicant had submitted the right form, an M2, when he made the application, but with some correct and some incorrect information in it.

1. At about 12:15pm on Tuesday 18 May 2021, the Tribunal sent an email in response confirming that the representative was right, the M2 MRD form was the correct one and explaining, because it was indicated in the form that the applicant had a bridging visa refused that the electronic system had interpreted, on the basis of that information, that no payment was required. Forms to provide details for payment, and to apply for a fee reduction, were attached to this second email that was sent by the Tribunal on 18 May 2021.

1. It is acknowledged that the M2 electronic application form, which was the correct form to lodge a review application for refusal of a visitor visa (on 12 May 2021), interpreted information entered as it was progressively filled out, to relate to a bridging visa refusal or cancellation, for an applicant in detention, and that no request for payment of a fee was made before the form accepted the application. When the Tribunal communicated with the representative on 18 May 2021, the payment form and form for the applicant to request a fee reduction had been provided to him, and there were three working days still remaining for the applicant to complete and return either or both of the forms to the Tribunal within the prescribed timeframe of seven working days. That is, by Friday 21 May 2021.

1. The applicant was notified of the refusal of the application for a subclass 602 visa on 12 May 2021 and the last day to lodge a valid review application was seven working days later, on Friday 21 May 2021. Accepting that there was some confusion about the fee within that seven day period, the discrepancy was identified by 18 May 2021, the applicant was informed, and next steps were clear. To make a valid application, the last day for the applicant to pay the fee was Friday 21 May 2021.

1. On the last working day the applicant had to pay the fee for the review application, Friday 21 May 2021, at 12:14pm the Tribunal received into its system, by email from the representative, credit card details for payment and a fee reduction request (to pay 50 percent of the fee of $1,826). The Tribunal had been put in a position, by the applicant providing credit card details within the prescribed time period, to be able to access the $913 fee, being 50 percent of the full fee. If the funds are available when the Tribunal attempts to access the credit card to obtain payment, the fee is taken to have been paid on the day that the credit card details were provided.

1. On Monday 24 May, the Tribunal twice attempted to take payment of $913 using the details of the credit card provided, at 10:19am and 10:21am; on both occasions, the card or transaction was declined.

1. At this stage, on Monday morning 24 May 2021, the fee reduction request was not processed because the fee had not been paid. Hypothetically, had the $913 fee been taken from the credit card for which the details had been provided on Friday 18 May 2021, the fee would have been paid and the application valid, on that basis. If a valid application is made, the Tribunal then goes on to assess whether the fee reduction will be granted. If the fee reduction is granted, an applicant (who has already paid 50 percent of the fee) is notified in writing, and no further payment is required. If a fee reduction request is not granted, it is the usual practice to inform an applicant that they have an additional 14 days to pay the remaining 50 percent of the application fee. In this case, the funds were not taken from the credit card for which the applicant provided details for the purpose of paying the fee, because the card was declined. Because the fee had not been paid, the matter was assessed as a potential ‘No Jurisdiction’ case for referral to a member to decide.

1. In the facts of this case, the Tribunal accepts that the credit card details provided on 21 May 2021 accompanied the review application. The applicant had provided a completed form requesting a fee reduction. The Tribunal attempt to access $913 for payment of the fee twice, on the morning of Monday 24 May 2021, but both attempted transactions were declined, by which time it was one working day after the end of the prescribed period for lodging a valid application.

1. After attempting to access funds from the credit card, on Monday 24 May 2021 the applicant was informed, in writing, that payment by credit card he had provided had been declined. In response, the representative responded by email a short time later requesting that the Tribunal ‘please try again as sufficient funds are now available’. The Tribunal has considered the response and is of the view that it is implied that ‘sufficient funds’ were not previously available (when the Tribunal attempted to access $913 from the credit card on Monday morning), but that they were ‘now’. In the circumstances, although the applicant provided credit card details within the prescribed period, the Tribunal is not satisfied, that when he did so on Friday 21 May 2021, the funds for payment of the fee were available to be accessed by the Tribunal for payment of the application fee. Therefore, the prescribed fee was not paid within the prescribed period.

1. There was further communication between the representative and the Tribunal. At 5:42pm, on Monday 24 May 2021, the representative sent an email requesting that an alternative credit card be used for payment of the Tribunal fee, and the number and details were provided. Then, at 2:08pm the next day, 25 May 2021, the representative sent a screenshot of the Tribunal form, that had been attached to the email sent evening before, including the alternative credit card details. The email sent late on Monday appears to have been placed on the applicant’s electronic file early the next morning, around 7:00am. It would be very unlikely that the email, which was sent outside normal business, would have been seen and actioned at close to 6:00pm the night before. It is not considered to be a material matter when the email was seen at either time, because the Tribunal is satisfied that, after attempting to access funds for payment of the fee twice on Monday morning, it had made reasonable attempts to effect payment.

1. The Tribunal is not required to continue to make repeated attempts to access funds from an applicant’s credit card or cards, for the purpose of processing an application fee. It is the applicant’s responsibility to ensure that their method of payment of the fee is reliable and that the funds are available. Where a credit card is to be used for payment of the fee, the details must be provided no later than the last day of the prescribed time within which the applicant has to make a valid application; in this case, that was seven days from 12 May

2021. The credit card details were provided on a Friday afternoon 21 May 2021, which was the seventh day and, until such time as the fee was not able to be accessed, the applicant was considered to have provided access to payment within the prescribed time period. The Tribunal is considers that attempting to access payment twice is reasonable and sufficient.

1. The letter sent by the Tribunal previously, on 24 May 2021 included that the validity of the application had not yet been assessed and that the applicant would be advised if it ‘appears that your application may not be valid’. It is acknowledged that details of an alternative credit card were provided at 5:42pm later that day. However, by this time, the Tribunal is satisfied that reasonable attempts had been made to access payment.

1. It is acknowledged that the representative rang the Tribunal on 28 and 31 May 2021 requesting to speak to the case officer about payment of the application fee. File notes indicate he was told that the case officer was not available and that an email would be sent to him. On 31 May 2021 an email was sent by the Tribunal, attaching a letter raising the validity issue and inviting the applicant to comment on the matter of not having paid the ‘reduced application fee of $913.00’ before the prescribed time period ended. The applicant was invited to comment in writing, by 15 June 2021.

1. In response, written submissions were received from the representative on 5 June 2021. He provided a chronology of events, relating to communication between himself and the Tribunal, which is essentially the same as detailed earlier in this decision. It was submitted that the applicant, because he was notified of ‘the systems error’ when a ‘total of 6 days’ had already passed, was left ‘little time to organise payment’.

1. The Tribunal considered the written submissions and concedes that it is correct to say that six days had passed since the application was made, but it was six calendar days, not six working days. The prescribed time period within which to lodge a valid application, in this applicant’s circumstances, is seven working days. It was on the fourth working day, from the notification of the refusal of his visa, that the Tribunal requested, in writing, payment of an application fee. At the time the applicant was informed he had to pay the fee, on 18 May 2021, he still had three working days to organise and finalise payment within the prescribed seven working days, which the Tribunal does not accept left the applicant ‘little time to organise payment’, even taking into account that he was in detention. The applicant provided the request for fee reduction and credit card details on 21 May 2021, indicating to the Tribunal that he clearly did have time to organise payment.

Summary

1. In summary, a chronology of relevant events includes:

a.The review application was lodged on 12 May 2021

b.The correct M2 was used, but the applicant provided inconsistent information in the form, indicating that the decision to be reviewed was for a subclass 602 visa and then, further on in the form, that he had an application for a bridging visa refused or cancelled

c.The form did not generate a request for a fee to be paid before the application was completed because it interpreted the application as one for an applicant in detention whose bridging visa had been refused or cancelled; such applicants are not required to pay an application fee

d.The errors, relating to incorrect information entered by the applicant, and the Tribunal form interpreting that the applicant had a bridging visa refused or cancelled, were identified manually after the application was made online

e.On Wednesday 18 May 2021, the applicant was notified that he needed to pay a fee for the application (because he had lodged an application for review of the refusal of a subclass 602 visa, not a bridging visa)

f.Fee reduction request was received, in writing, on 21 May 2021

g.The credit card provided by the applicant to pay the fee, on 21 May 2021, was declined when payment was attempted twice

h.An alternative credit card number was provided, after the prescribed seven day period had ended, at 5:42pm on 24 May 2021

i.The next day, Tuesday 25 March 2021, a screenshot of the completed form for payment of the $913 fee, including the alternative credit card details, was received by the Tribunal at 2:57pm

j.A letter was sent to the applicant on 31 May 2021 informing him that it appeared he had not lodged a valid application because the fee had not been paid within seven working days, by 21 May 2021

k.A written response was received on 5 June 2021 and the information provided has been considered

1. The Tribunal is satisfied that the applicant, even in these slightly irregular circumstances, had a reasonable period, within the prescribed period of seven days since he was notified of the refusal of his visa, to pay the application fee since being notified on 18 May 2021 of the requirement to do so; he had until Friday 21 May 2021. However, for the reasons given, the Tribunal is not satisfied that the fee was not paid within that time. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.

DECISION

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

Jennifer Cripps Watts Member