TRIPATHI v Minister for Immigration
[2013] FMCA 66
•15 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRIPATHI v MINISTER FOR IMMIGRATION | [2013] FMCA 66 |
| MIGRATION – Application to review decision of delegate that visa application invalid because fee not paid – whether fee paid a question of fact – facts unclear – further time given to the parties to put forward evidence. |
| Migration Act 1958, ss.476, 476(2)(a) |
| Vumentala v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 744 Butcher v Minister for Immigration [2005] FMCA 880 Jaswal v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 787 |
| Applicant: | RAJAN TRIPATHI |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | MLG 1172 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 10 & 21 December 2012 |
| Date of Last Submission: | 11 January 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 15 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Herbert (on 10 December 2012) and in person (assisted by Dr Subramaniam) on 21 December 2012 |
| Counsel for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1172 of 2012
| RAJAN TRIPATHI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
Ostensibly the issue in this case is whether or not the matter should be adjourned to give the applicant further time to prepare and present his case. The application for adjournment has been opposed by the respondent at all times.
When the matter came before me on 10 December 2012, I reserved my decision on the application for an adjournment (see transcript P-18). Nonetheless, I had heard the argument on the show cause application, not least because the respondent's submissions included a submission that the application was bound to fail in any event and, therefore, an adjournment was pointless.
It should be noted that the respondent concedes that the Court has jurisdiction to hear this matter, which was pressed pursuant to s.476 of the Migration Act 1958 (“the Act”). In substance, however, this is an application for prerogative writs under s.75(v) of the Constitution. Counsel for the respondent conceded that pursuant to s.476(2)(a) a determination of the sort that this case involves is not an excluded matter, and accordingly the Court can entertain it.
In order to understand the eventual outcome, it is necessary to refer to the procedural history of the matter.
The Procedural history
The application was filed on 20 September 2012. It sought that a decision of a delegate of the Minister, Lynn McKirdy, dated 30 July 2012 be quashed. The ground of application was that:
“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.”
The particulars assert, correctly, that the applicant had, by his migration agent, provided payment details in the application form which included a credit card provider, the amount of the payment, the credit card number, the name, telephone number and address of the cardholder, but not the expiry date of the credit card. The critical question was identified in particular 2, namely whether:
“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.”
An affidavit filed contemporaneously with the application simply appended a copy of the decision, the subject of the application. The letter from Ms McKirdy to the applicant dated Monday, 30 July 2012, confirms that the reason the application was not accepted was because credit card expiry details were not provided. Ms McKirdy's letter confirmed that that meant that the application did not satisfy requirements relating to the payment of the required fee.
The letter noted, correctly, that the application for a visa was not filed until Thursday, 28 June 2012 and there was not sufficient time to process the payment and contact the cardholder prior to 30 June 2012.
The letter also asserts that there were unprecedented application levels in the second half of June 2012.
That there were unprecedented levels of application was plainly because the sort of visa the applicant sought ceased to exist on 1 July 2012. It is not surprising that there was a plethora of applications.
It should be noted that the application sought an extension of time on the grounds that there was substantial merit in the application and that the required extension of time was not lengthy. On 7 November 2012, the matter came before Registrar Allaway who made procedural orders. On 20 November 2012, the matter came before the Court, and the proceeding was adjourned to hearing on 10 December 2012.
On 10 December 2012, the applicant's solicitor, Ms Chew, filed in Court an affidavit which complained that on 7 December 2012 she had received a letter and enclosure of the Supplementary Court Book addressed to her office and that there had not been time to take advice from counsel about the matters raised.
Relevantly for these purposes, when the matter came before the Court counsel (not counsel originally retained whose advice would have been sought if time had permitted) sought an adjournment of the matter for some 30 days. Counsel outlined the circumstances giving rise to the application.
Counsel for the respondent pointed out that Ms Chew's affidavit omitted to mention earlier correspondence passing between the parties. The correspondence was tendered as exhibit R1.
Exhibit R1 shows that on 21 November 2012, Ms Chew wrote to the respondent's solicitor asking for a copy of the merchant agreement between the respondent’s Department and its bank setting out the terms and conditions for credit card transactions applicable on 28 June 2012 and details of what steps were taken by the respondent to obtain authorisation of the credit card payment in the case, including copies of any relevant documents relating to the request.
On 30 November 2012, the solicitor for the respondent replied attaching a copy of the merchant agreement and a response from the Australian Government Solicitor. That response, which was addressed to the applicant's then solicitors, relevantly read:
“We confirm that it is a scheme (MasterCard/Visa) requirement to capture card expiry dates, and as such the Commonwealth Bank EFTPOS terminals and CommWeb online facilities are hard-coded to make its capture mandatory.
We further confirm that it was not open to our client to obtain authorisation of a credit card payment in your client's case given the bank's mandatory requirement that credit card expiry dates be provided.”
The Supplementary Court Book filed on 6 December 2012, in addition to including the merchant agreement, also includes an email exchange between the respondent and the Commonwealth Bank. The email to the bank from the Department of Immigration dated 26 November 2012 relevantly stated:
“I have received a request from our legal area to clarify that, if a client is paying a visa application charge by a credit card, but has provided insufficient credit card details, can this payment be processed? In this case, the client has provided the credit card number on the visa application form but did not provide the expiry date of the card.
Our legal area has asked whether there is a requirement by the bank that credit card processing cannot occur if the expiry date of the card is not provided. If yes, what is the authority for this requirement, is it legal or just technical.”
The reply relevantly stated:
“Our Merchant Compliance Area has advised that it is a Scheme (MasterCard/Visa) requirement to capture card expiry dates and as such, our EFTPOS terminals and Commweb online facilities are hard coded to make its capture mandatory.”
On 10 December 2012, as earlier indicated, I reserved my decision on the question of the adjournment and gave the applicant until
20 December 2012 to file any further written submissions.
On 20 December 2012, the applicant emailed my associate requesting an extension of time saying that he was in contact with Dr Rae Subramaniam who would be acting on his behalf but was not available that day.
The matter was listed on 21 December 2012 on which date the applicant, together with Dr Subramaniam, attended. Having traversed the matter with Dr Subramaniam, I extended the time for the filing of submissions by the applicant to 11 January 2013, with the respondent to reply later.
On 11 January 2013, the applicant sought to file a further written submission. The registry did not accept it for filing, but it is on the Court file.
It should be noted that Dr Subramaniam expressly confirmed that
11 January 2013 was a sufficient amount of time for her to make the necessary preparations to the applicant's case and written submissions. There is no explanation as to why she has not, in fact, acted for him.
The kernel of the applicant's later submissions is really at paragraph 3 where he states:
“… if the department had sent my agent's card details without the expiry date commonwealth bank might have started the payment process and contacted my agent's bank (ANZ), the expiry date could have been supplied by ANZ bank in order to process the payment. My agent has a business account with the ANZ bank and a number of payments have been processed by the bank and many of them in form of visa application fees. One extra effort form the department could have put my application back on track and i would have been working full time with a valid bridging visa.”
The application itself
The application for an employer-sponsored visa for migration to Australia is set out at CB 7-27, and it is correct that at CB25 the applicant's then agent filled in all the relevant details for the credit card except its expiry date. It was the agent's credit card that was nominated, so the agent clearly would have known the expiry date. It was clearly just an unfortunate oversight that he failed to fill it in.
The applicant also included, CB 28-33, a contract of employment dated 1 June 2012 with TandooriIndian in support of his application. It would appear that if the visa application had been accepted, he had a job to go to.
The sole basis upon which the application was not accepted was the issue of non-payment of the applicable fee. The application, of course, has never been assessed on its merit.
The substantive issue, therefore, can be put shortly. The application for a visa was a valid one for these purposes if what was put in the form by the agent is properly taken to have constituted a valid payment. It is invalid if it was not. It is not necessary to refer to the legislation in any detail as both parties agree that is the situation.
The Law
In Vumentala v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 744, Branson J dealt with a case which, in some ways, was similar to this one. In that case, the applicant’s agent purported to pay the relevant fee by credit card but failed to indicate the amount she intended to pay. She also omitted to the Court the final five digits of her 15 digit American Express card number.
Her Honour noted that the failure to indicate the amount of the payment intended to be made was not material given a concession made by the respondent.
The respondent also made a number of other admissions recorded by her Honour at [12], namely:
“1. That the respondent accepts payment of visa application charges by credit card including American Express where sufficient information is provided to enable approval of the creditor provider to be obtained (any such acceptance being subject to subsequent approval being given by the credit provider).
2. That the respondent has a practice, in cases where sufficient information is provided in the visa application to enable approval of the credit provider to be obtained, whereby the application charge in respect of an application for a visa is taken to have been paid on the date that the application for the visa is received, provided that the credit card authorisation given in the visa application is subsequently approved.
3. That the respondent’s practice as identified in (2) above applies even where the approval of the credit card authorisation occurs on a date subsequent to the date that the application for the visa was actually received by the respondent.
4. That the respondent has at no time attempted to seek authorisation of payment of the application charge …”.
At [13] her Honour recorded a further admission, namely:
“The contract between the Department of the respondent and its banker, the Commonwealth Banking Corporation, is silent as to whether the Department may alter or insert details on credit card authorisations received by it.”
At [14] her Honour recorded that:
“I do not consider it necessary to consider whether this practice results in strict compliance with s 46 of the Act.”
That was because the proceeding had been conducted on the assumption that the practice was lawful.
At [15]-[16] her Honour set out the relevant test:
“15. 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 Pt 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.”
Her Honour went on to find that on the facts of the case at [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 Pt 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.”
For the reasons given by her Honour, the applicant succeeded. It is important to note that Ms Grunseit had forwarded two forms to the same relevant departmental office. One of them did have all the details of her American express card so the relevant officer assessing the form which did not, had actual knowledge of the applicant’s credit card details.
In Butcher v Minister for Immigration [2005] FMCA 880, Barnes FM dealt with another similar situation. In that matter, the applicant’s agent failed to fill in the amount to be paid. Having dealt with a number of cases dealing with cheques (including Jaswal v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 787, a decision to which I have also been referred) her Honour found expressly at [31]:
“I accept that, as contended for the applicant, given the fact that the charge may be paid by methods other than cash, the Migration Act 1958 and Regulations contemplate 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.”
In the circumstances that obtained, Barnes FM found that the relevant officer of the Department in the Adelaide Skilled Processing Centre knew the complete details of the applicant’s credit card, his willingness to pay the application fee and must have been taken to have known what the relevant application fee was.
Her Honour assessed the relevant circumstances against what was known of the Department’s contractual arrangements with its banker. It would seem that there was no information of the sort obtained in the supplementary Court book and exhibit R1 in this case before her Honour. Relevantly for these purposes, her Honour adopted the same approach as Branson J in Vumentala where she said at [50]:
“… by completing all of Part O of the visa application form (which contained an internal reference to a method of ascertaining the correct visa application fee) except the actual dollar amount of the fee in the circumstances set out above, the applicant 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. The respondent was impliedly authorised by the applicant to record the actual amount of the visa application charge (obviously omitted in error) in Part O or indeed on such other form of authority as was ordinarily used by the Department to obtain payment of charges authorised to be paid by Visa credit card. Hence I am satisfied that the visa application charge in respect of the applicant’s visa application was paid when the application form was received by the Adelaide Skilled Processing Centre on 12 February 2004. The respondent was from that time in a position to require payment of the visa application charge by Visa.”
The applicant succeeded.
I am obliged to follow Barnes FM’s decision unless I think it is clearly wrong, which I do not.
The application of this test to the facts
Here the position is factually different to Vumentala and Butcher. There is nothing to suggest that the officer who made the impugned decision had actual knowledge of the expiry date of the applicant’s agent’s credit card or ready access to it.
The question is, as a matter of fact however, whether the details provided would have been sufficient to enable the respondent to achieve payment.
As far as the evidence presently goes, I would have to find, subject to any further submissions, that the respondent cannot enforce payment. Unlike the other two cases, in this case the evidence is contained in R1.
“We confirm that it is a scheme (Mastercard/Visa) requirement to capture card expiry dates and as such, the Commonwealth Bank EFTPOS terminals and CommWeb online facilities are hardcoded to make its capture mandatory.
We further confirm that it was not open to our client to obtain authorisation of a credit card payment in your client’s case given the bank’s mandatory requirement that credit card expiry dates be provided.”
Those observations clearly reflect the matters set out in the supplementary Court book and most particularly the letter from the Commonwealth Bank to the respondent’s department.
The difficulty that I have is that on one view the question asked by
Ms Vaikyl was not answered. The question was:
“… if a client is paying a visa application charge by a credit card, but has provided insufficient credit card details, can this payment be processed? In this case, the client has provided the credit card number on the visa application form but did not provide the expiry date of the card.
Our legal area has asked whether there is a requirement by the bank that credit card processing cannot occur if the expiry date of the card is not provided.”
The answer from Ms Cunningham of the bank was:
“Our Merchant Compliance Area has advised that it is a Scheme (MasterCard/Visa) requirement to capture card expiry dates and as such, our EFTPOS terminals and Commweb online facilities are hard coded to make its capture mandatory.”
While that can only be construed, in the absence of anything else, as a negative response to the queries made, what would be more helpful to know is whether, if the mandatory requirement is not met, the bank either cannot, or as a matter of practice does not, pay.
Conclusion
This is an unusual case turning on unusual facts. The consequences for an adverse outcome for the applicant would seem severe. In these very unusual circumstances, I am minded to grant the parties a further period of time in which to put any further materials as they may be advised before the Court. I will hear the parties as to how much time they want.
In the event that no further materials or submissions are provided, it would be clear that I would be minded to dismiss the application. If the materials provided show that as in Vumentala and Butcher the respondent is still able to obtain payment from the applicant’s agent’s credit card then I would be minded to allow the application.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 15 February 2013
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