KAUR v Minister for Immigration
[2013] FCCA 125
•24 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION | [2013] FCCA 125 |
| Catchwords: MIGRATION – Decision that application invalid – alleged failure to pay application charge – credit card expiry date missing from application – whether department in a position to require payment, through its banker, from the credit card holder’s credit provider – whether the department was in possession of credit card expiry date – question of fact. |
| Legislation: Migration Act 1958 ss.46, 476, 477, 500 |
| Cases Cited: Vumentala v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 744 Butcher v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 880 Tripathi v Minister for Immigration (No 2) [2013] FMCA 179 |
| Applicant: | LAKHWINDER KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG 1223 of 2012 |
| Judgment of: | Judge Riley |
| Hearing dates: | 8 February 2013, 15 March 2013 and 4 April 2013 |
| Date of last submission: | 4 April 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 24 April 2013 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant was not represented |
| Advocate for the Respondent: | Christopher McDermott on 8 February 2013 and David Brown on 15 March 2013 and 4 April 2013 |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The time for the filing of the application to this court be extended to
2 October 2012.
There be an order in the nature of certiorari bringing in to court and quashing the decision of the respondent that the applicant’s application lodged on 28 June 2012 is invalid.
There be an order in the nature of mandamus requiring the respondent to consider the applicant’s application lodged on 28 June 2012.
FEDERAL CIRCUIT |
MLG 1223 of 2012
| LAKHWINDER KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for writs of certiorari and mandamus in respect of a decision of the Minister for Immigration and Citizenship. The Minister decided that a visa application lodged by the applicant was invalid because it did not contain the expiry date of the credit card that was given as the means of payment of the visa application charge.
The applicant holds a subclass 572 student visa. On 28 June 2012, the applicant’s migration agent personally lodged with the office of the Department of Immigration and Citizenship at Casselden Place an application made by the applicant for employer sponsored migration to Australia under the Regional Sponsored Migration Scheme. The application could not be processed on that date, because the office was too busy.
A departmental officer attempted to process the payment for the application on 5 July 2012. The officer discovered on 5 July 2012 that the expiry date of the credit card had not been written on the application form.
On 9 July 2012, another officer sent an email to the applicant’s migration agent notifying him that the application was invalid, as the application charge of $2,095 had not been paid. The migration agent replied by email on 9 July 2012 and attached a fresh application that included the expiry date of his credit card.
The department replied to the migration agent on 9 July 2012 to the effect that the fresh application could not be processed because the relevant type of visa was closed to new applicants on 30 June 2012.
Because the relevant type of visa, and a number of other types of visa, were closed to new applicants on 30 June 2012, the department had anticipated that it would be very busy in the lead up to 30 June 2012. The department had put in place administrative arrangements to deal with the additional workload. One of those arrangements was that anyone attending the department to lodge multiple applications on 28 June 2012 would not be permitted to pay by credit card on the day. Rather, their applications would be placed in a tray for payment to be processed on a later date.
The applicant’s migration agent attended the department on 28 June 2012 with multiple applications, including the applicant’s. The agent was not permitted to pay by credit card on the day. All of the applications sought to be lodged by the migration agent on 28 June 2012 were placed in a tray for payment to be processed on a later date.
Jurisdiction of the court
The respondent accepted that this court has jurisdiction under s.476 of the Migration Act 1958 to deal with the present application. The decision is not a primary decision under s.476(4) of the Act because it is not reviewable under Parts 5 or 7 or s.500 of the Act.
Extension of time
The applicant sought an extension of time to bring the present application. The decision sought to be reviewed was made on 9 July 2012 and her application to this court was lodged on 2 October 2012.
Under s.477 of the Act, the applicant had 35 days from the date of the decision to file her application to this court, subject to any extension granted by the court. The 35 days expired on 13 August 2012. Consequently, the application was 50 days late.
The respondent made no written or oral submissions on the question of an extension of time. I take it that the respondent does not oppose the extension of time.
As the following discussion shows, there is substantial merit in the application. There would be substantial prejudice to the applicant if an extension were not granted. There was no indication of any prejudice to the respondent or any other person if the extension were granted. The length of the delay was 50 days. The applicant offered no explanation for her delay. However, in all the circumstances, I consider that it is appropriate to grant an extension of time in this case.
Ground of review
The only ground of review in the application filed on 2 October 2012 is:
The respondent erroneously considered that the applicant had not made a valid application for a visa because the visa application charge had not been paid.
Particulars
1.The applicant had, through the applicant’s migration agent, provided payment details in the application form which included the credit card provider, the amount of the payment, the credit card number, and the name, telephone number and address of the cardholder, but not the expiry date of the credit card.
2.In all the circumstances the payment details provided in the application form placed the respondent in a position from which payment of the visa application charge could be required from the relevant credit provider.
Subsection 46(1) of the Act relevantly provides that:
… an application for a visa is valid if, and only if:
…
(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 … .
In Vumentala v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 744[1], Branson J said:
[1] Vumentala was fleetingly considered by a Full Court (Finn, Kenny and Greenwood JJ) in Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151 at [40] where the Full Court said:
Given that this appeal must be dismissed we do not consider it necessary to determine this particular matter. It was only lightly dealt with in the appellant’s submission and the evidence concerning it is slight. In saying this we do not intend in any way to cast any doubt on the decisions in Vumentala v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 744 and Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 but neither do we suggest that they necessarily are on all fours with the present matter given its distinctive circumstances and the language of s 347(1)(c).
14.The respondent has admitted for the purpose of this proceeding that she accepts payments of visa application charges by credit card, including American Express, where sufficient information is provided to enable approval of the credit provider to be obtained – subject to approval subsequently being given by the credit provider. I do not consider it necessary to consider whether this practice results in strict compliance with s 46 of the Act. It is appropriate for this proceeding to be determined on the assumption adopted by the parties that the practice of the respondent is lawful. I do not mean to suggest a view one way or the other as to whether the practice results in strict compliance with s 46 of the Act.
15.I do not consider that the issue required to be determined in this case is whether Ms Grunseit ‘substantially complied’ with the requirements of Part K of the visa application form in the sense discussed by the Full Court in Bal v Minister for Immigration and Multicultural Affairs [2002] FCAFC 189; 189 ALR 566. The issue is rather, as it seems to me, whether Ms Grunseit paid the visa application charge at the time that the applicant’s visa application was received by the Adelaide Skilled Processing Centre. Ms Grunseit 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 Ms Grunseit’s credit provider, American Express.
16.Whether Ms Grunseit placed the respondent in a position to be able to require payment of the visa application charge from American Express is a question of fact. It is to be determined having regard to all the circumstances of this particular case. It is not possible, in my view, 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.
17.The circumstances of this case that are relevant to the question of whether Ms Grunseit paid the visa application charge at the time that the visa application was received by the Adelaide Skilled Processing Centre include that:
(a)Ms Grunseit is, and was known by the Department to be, a registered migration agent;
(b)Ms Grunseit indicated in Part K of the visa application form that the visa application charge was to be charged to her American Express card;
(c)Ms Grunseit provided in Part K of the visa application form correct, albeit incomplete, details of her American Express card;
(d)Ms Grunseit signed Part K of the visa application form in the place provided for a signature authorising a credit card charge;
(e)The officer or agent of the Department responsible for processing the applicant’s visa application form knew the complete details of Ms Grunseit’s American Express card from Part K of the second visa application form.
18.The significance of the above circumstances is to be assessed against the admission of the respondent that her Department’s contractual arrangements with its banker are silent on the issue of whether the Department may alter or insert details on credit card authorisations received by it. The admission may, in my view, be regarded as unremarkable. It is, I consider, notorious that credit card payments can be authorised over the telephone. When so authorised the merchant, not the credit card holder, necessarily inserts the credit card details on the relevant authorisation. However, as I did not hear the parties on whether I am entitled to take judicial notice of the practice of authorising credit card payments by telephone, I place reliance simply on the respondent’s admission.
19.In my view, in the circumstances identified in [17] above, the respondent was impliedly authorised by Ms Grunseit to record the numbers of her American Express card, obviously omitted by her in error, in Part K or on such other form of authority as was ordinarily used by the Department to obtain payment of charges authorised to be paid by credit card. I conclude that the visa application charge in respect of the applicant’s visa application was paid by Ms Grunseit when she caused the applicant’s visa application form to be delivered to the Adelaide Skilled Process Centre. 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.
20.The applicant is entitled to an order quashing the decision of the delegate of the respondent that the applicant’s visa application is invalid. The applicant is further entitled to an order requiring the respondent to consider his application for a visa. It is neither necessary nor appropriate in the light of the above orders to make any declaration.
In Vumentala, a migration agent had posted two visa applications to the department under cover of a single letter. The first application omitted the last five digits of the 15 digit credit card number given as the source of the payment. The second application contained the full 15 digit credit card number. Justice Branson considered that, in these circumstances, the migration agent had placed the department:
in a position from which payment of the charge could be required by it, through its banker, from [the migration agent’s] credit provider.
The question in the present case is whether the applicant’s migration agent had placed the department in a position from which payment of the charge could be required by it, through its banker, from the migration agent’s credit card.
There was no suggestion in the present case that the provision of credit card details would not comply with the requirements of s.46 of the Act. It was common ground that there was sufficient credit on the migration agent’s credit card to pay the relevant fees at the relevant time. It was also common ground that a credit card payment could not be processed without the expiry date.
Evidence was given in this case by the applicant’s migration agent and a number of departmental officers.
A manager from the department gave oral evidence that it was possible to interrogate the departmental computer system to obtain a list of all of the applications lodged by a particular migration agent. If an application had been lodged electronically, it was possible to call up that application and to see on the computer screen the whole application, including, presumably, any credit card expiry date that had been supplied. If an application had been lodged in paper form, it was possible to obtain the reference number of the application and then locate the original paper application.
The manager said that paper applications were kept:
a)with the case officer who was processing the application;
b)in a compactus; or
c)in the basement.
The manager said that, if the paper application was in the basement, it could be obtained within 48 hours via a service provider. If the paper application was with a case officer, another officer who wanted the application could go to the case officer’s desk and take the application from him or her. Presumably, if the paper application was in the compactus, an officer who wanted the paper application could go to the compactus and get it.
The migration agent in the present case gave evidence that he had lodged numerous applications with the department prior to 28 June 2012 that included his complete credit card details. For example, exhibit 5 is a student visa application accompanied by a letter dated 17 May 2012 from the department to the migration agent saying that the application was validly lodged on 16 May 2012. The student visa application contains the same credit card number as was provided in the present case, but also contains the expiry date, being “11/14”. This appears to be a paper application.
Similarly, exhibit 2 is an application for employer sponsored migration to Australia that the migration agent lodged by post. It again has the migration agent’s credit card number and the expiry date of his card. There is a receipt from the department indicating that payment was processed on 28 June 2012. This application also appears to have been a paper application.
These two exhibits clearly show that the department was in possession of paper applications containing the expiry date of migration agent’s credit card when the officer attempted to process the payment of the applicant’s application on 5 July 2012.
The present case differs somewhat from Vumentala in that the credit card details in the present case were not conveniently located in another application that was contained in the same envelope as the application that omitted them. However, it would not have been difficult for the departmental officer to find the relevant expiry date. He could have interrogated the departmental computer system, found a list of applications lodged by the migration agent, and located the relevant paper applications. At most, there would have been a 48 hour wait while the files were being brought up from the basement. At best, the file would have been in the compactus or at the desk of another officer, and could have been obtained within minutes.
In these circumstances, the migration agent had placed the department in a position to require payment, through its banker, from the migration agent’s credit provider. It seems to me that it is sufficient that the department has the relevant information in a form that can be retrieved, even if there may be a little time and effort required to retrieve the relevant information.
It has been considered in the decided cases that it is not improper for the department to fill in payment information missing from one application if it has the relevant details in another application. Vumentala itself came to that conclusion. See also Butcher v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 880 at [49] where Barnes FM held that the department could complete the amount of the credit card payment where the payer could be taken to have known the amount and omitted it in error.
I accept that, in the present case, the migration agent omitted the relevant expiry date in error. He gave evidence that it was his custom to only include his credit card details with applications that he sent by post. When he attended Casselden Place in person, he would give his credit card to be swiped on the spot. In the present case, he attended the Casselden Place on 28 June 2012 intending to give his credit card to an immigration officer for immediate payment of the applicant’s application fee and the application fees of some other applicants. However, due to the large volume of work on the day, he was not permitted to pay by credit card. He hurriedly attempted to complete his credit card details on a number of applications, but inadvertently omitted the expiry date in the applicant’s application.
The respondent attempted to undermine the migration agent’s credibility. However, that attempt was largely unsuccessful. There was no challenge to the evidence set out above and I accept it.
The matters set out above are sufficient to dispose of the application. However, for completeness, I also note that the migration agent said that, when he lodged the applications including the applicant’s application on 28 June 2012, a migration officer told him that, in the event of any problem with payment, he would be contacted. The migration agent said that he did not know the name of the officer who told him that. This evidence was not challenged by the respondent and I accept it.
The migration agent also said that one of the applications he lodged on 28 June 2012 had the credit card details of the relevant applicant, as opposed to the migration agent’s credit card details. In that case, the expiry date of the credit card was June 2012. When the payment came to be processed in July 2012, the card had already expired. In that case, an officer of the department made a telephone call to obtain the relevant expiry date and then processed the payment. This evidence was not challenged by the respondent and I accept it.
Indeed, the manager confirmed in oral evidence that some departmental officers in early July 2012 did telephone credit card holders in circumstances much the same as the present applicant’s to obtain missing credit card information. The manager said that there had been a departmental instruction towards the end of June to only process payments where all of the relevant data was present. The manager said that some officers were not aware of that instruction so made follow up calls.
I accept that the department had an extraordinarily large volume of work in the lead up to 30 June 2012, because it was the cut off date for a number of types of visa applications. I also accept that it was not unreasonable in such circumstances for the department to postpone processing payments of some visa applications.
However, in circumstances in which the department had refused to accept an offer of payment on 28 June 2012 and in circumstances in which an officer of the department had said that there would be a follow up call in the event of any difficulty with payment, it would have been unreasonable for departmental officers to not make such a call to obtain the present migration agent’s credit card expiry date, if they had not already been in possession of it. As explained above, the department did have the migration agent’s credit card expiry date, so it was not necessary for an officer of the department to make a telephone call.
Finally, I note that a somewhat similar situation to the present case arose in Tripathi v Minister for Immigration (No 2) [2013] FMCA 179. The evidence in that case was very different to the evidence in this case. As Vumentala makes clear, the question in cases such as the present is a question of fact to be determined on the basis of the evidence adduced in the particular case. Tripathi is in no sense binding upon me. The facts in that case were quite different to the facts in this case.
In all the circumstances of this case, it is appropriate to issue the writs that the applicant seeks. She also seeks costs. I will hear the parties on that question.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 24 April 2013
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