NATIONAL CARE PLUS PTY LTD (Migration)

[2024] AATA 1642

NATIONAL CARE PLUS PTY LTD (Migration) [2024] AATA 1642 (24 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  NATIONAL CARE PLUS PTY LTD

CASE NUMBER:  2401850

HOME AFFAIRS REFERENCE(S):          BCC2023/1131559

MEMBER:Paul Windsor

DATE:24 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 24 May 2024 at 3:35 pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – employer nomination scheme – prescribed application fee not paid – technical errors – two applications and fees processed – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 347(1)
Migration Regulations 1994 (Cth), rr 4.10, 4.13, 5.19(3)

CASES
Braganza v MIMA (2001) 109 FCR 364
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 Home Affairs, dated 16 January 2024, refusing to approve a nomination under the Employer Nomination Scheme, under regulation 5.19(3) of the Migration Regulations 1994.

2. The review application form was lodged with the Tribunal on 5 February 2024. 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 reg 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 reg 4.10, and accompanied by the prescribed fee unless a determination has been made under reg 4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in reg 4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 6 February 2024. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under reg 4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. The Tribunal wrote to the authorised recipient on 19 April 2024 advising him that it is of the view that the application for review is not a valid application because the application fee has not been paid.

5. The authorised recipient replied on 10 May 2024, commenting that they completed payment for the review application on 5 February 2024 but due to technical errors in the Tribunal’s portal, two payments were processed. He added that one payment was refunded and the other was processed in time for the lodgement. He attached copies of receipts for the two payments, dated 5 February 2024; a request to the Tribunal’s Migration and Refugee Division and the Tribunal’s Finance Section that a duplicate application created (case 2401853) be deleted and the fee refunded; a copy of the company’s National Australia Bank (NAB) account details for refund of the fee; and a copy of a payment notice from the Tribunal indicating that the refund had been paid to the nominated account on 13 February 2024.

6. The Tribunal wrote to the authorised recipient again on 22 May 2024 reiterating that it appears the application for review made by National Care Plus Pty Ltd is not valid as the fee for making the application for review has not been paid. The Tribunal advised that, although the fee of $3,374.00 was initially paid on 5 February 2024 (online payment receipt of 745341444) a request for a chargeback was made on 17 April 2024 (one of two chargeback requests made that day) and, on 18 April 2024 two amounts of $3,374.00 were deducted from the Tribunal’s accounts on the basis that the cardholder did not authorise the transactions.

7. The Tribunal advised that one of those amounts of $3,374.00 related to this application for review (case 2401850) and the other related to the duplicate review application (case 2401853).

8. The Tribunal advised the authorised recipient that, as the payment of $3,374.00 for the application for review made for National Care Plus Pty Ltd was not authorised and has been deducted from the Tribunal’s accounts and returned to them on this basis, the application for review is considered not to have been accompanied by the prescribed fee at the time it was made (or to have been made within the prescribed period for making it).

9. The Tribunal also noted that, as the fee for the duplicate application was refunded by the Tribunal on 13 February 2024, they appear to have a debt to the Tribunal of $3,374.00 as a consequence of the two successful chargeback requests made on 17 April 2024.

10. The authorised recipient responded on 23 May 2024. He commented that, when the application payment was made online, the portal did not respond with a receipt confirmation, which led them to assume that the payment had not been processed, prompting them to re-submit the payment. He stated that, subsequently, the Finance department contacted them to investigate the duplicate payment and to check why the portal did not respond to the first payment receipt. He stated that they were informed that a refund would be issued for the first payment.

11. The authorised recipient added that, meanwhile, their bank was also investigating the duplicate payments to ensure customer protection and recalled the second payment. He stated this issue was unknown to them until they received a call from their Commonwealth Bank yesterday, advising that they had retrieved the valid payment, which they had informed the bank was incorrect. He added that the case has, however, since been closed by the bank.

12. The authorised recipient commented that, given the current situation, they would like to continue with the application. He stated that they have attempted to log back into the portal to make the payment, but the option is not available to them and requested that a link be provided for them to make the necessary payment.

13. The Tribunal finds the authorised recipient has not addressed the key issues put to him. The Tribunal responded quickly to a telephone call from the company on 5 February 2024 regarding them having been charged twice for the application, contacting the authorised recipient the same day by telephone and then by email. The Tribunal quickly made arrangements, as verified by the documents submitted by the authorised recipient on 10 May 2024, to delete the duplicate application and refund the associated fee to a nominated National Australia Bank (NAB) account. On 17 April 2024, however, two chargeback requests were made on the basis that the relevant transactions were not authorised. These were both successful despite the Tribunal’s submission disputing them. Consequently, on 18 April 2023 the Tribunal’s Westpac account was debited two amounts of $3,374 each, being the application fees in relation to the current case (2401850) and the duplicate case (2401853).

14. The authorised recipient has commented that the issue was unknown to them until they received a call from their Commonwealth Bank yesterday (22 May 2024), advising that the bank had retrieved the valid payment, which they informed the bank was incorrect. The Tribunal does not accept that their bank would have initiated a chargeback request in relation to both payments, on the basis that both transactions were not authorised, without the cardholder’s knowledge, and would not have advised them until 22 May 2024 of an outcome that occurred on 18 April 2024.

15. The Tribunal finds that, as the payment of $3,374.00 for the application for review made for National Care Plus Pty Ltd was not authorised and has been deducted from the Tribunal’s accounts and returned to the applicant, the application for review is considered not to have been accompanied by the prescribed fee at the time it was made and not to have been made within the prescribed period for making it. Accordingly, the prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Paul Windsor
    Member