TRIPATHI v Minister for Immigration (No.2)
[2013] FMCA 179
•18 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRIPATHI v MINISTER FOR IMMIGRATION (No.2) | [2013] FMCA 179 |
| MIGRATION – Final ruling following receipt of further materials – application dismissed. |
| Migration Act 1958 (Cth) |
| Applicant: | RAJAN TRIPATHI |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | MLG 1172 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 15 February 2013 |
| Date of Last Submission: | 5 March 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 18 March 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1172 of 2012
| RAJAN TRIPATHI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
On 15 February 2013, I gave Judgment in this matter and made an order. The order was that the parties file and serve any further materials on or before 1 March 2013.
As will be apparent, I was concerned that the materials before the Court might be insufficient to enable the Court to determine the critical question of fact that the case gave rise to, namely whether the credit card details provided by the applicant’s agent would have been sufficient to enable the respondent to achieve payment.
Because of the slightly opaque state of the evidence, I gave the parties until 1 March 2013 to file any further materials as they might be advised to on the facts that would bear upon this critical factual issue.
On 1 March 2013, the respondent filed affidavits sworn by James Malizani, Stephen Russell and Angela Nguyen. Mr Malizani is the Assistant Secretary of the Financial Management and Operations Branch within the Department of Immigration and Citizenship.
Mr Russell is the Director of Program Delivery Temporary Business Entry (also within the Department of Immigration) and Ms Nguyen is Associate, Acquiring Products at the Commonwealth Bank of Australia.
Mr Malizani has worked in that position for approximately three years and before that held roles within the Department in the finance area for approximately five years. In his position he is responsible for the financial management and operations of the Department. Mr Russell and Ms Nguyen have been employed in their roles for lesser periods of time, but still of sufficient duration to ground their evidence.
From the matters set out in Mr Malizani’s affidavit, which are clearly within his knowledge given his length of experience, it is quite clear that the applicant did not pay the prescribed fee with his application. The affidavits of Mr Russell and Ms Nguyen further support the evidence of Mr Malizani.
On what appears to be 1 March 2013, the applicant filed a document annexed to an unsworn affidavit. He annexed a letter (undated) which raised two matters. The first was an assertion that when his agent submitted his application, the agent was physically present at the counter at the immigration office and offered his credit card for the application fees to be taken from his card. The statement asserts that the person at the counter did not try to swipe the card in order to accept the fees, which “is why the whole issue of the expiry date came up”.
The letter continues “if the application had been sent by mail, telephone of the internet, then the expiry card was essential”. The letter continues by referring to the merchant agreement of the Department of Immigration which it was asserted says nothing about mandatory expiry date when the card is provided over the counter for payment of fees. The gravamen of what was put about this issue is that the failure of the Department to accept the credit card payment over the counter was the only reason that the expiry date became of any moment.
The applicant went on to say that his agent had paid by credit card without the expiry date in other applications and appended copies thereof.
It is clear that for whatever reason, the Department did not accept over the counter payment by the applicant’s agent. His own materials show that this was so. It is equally clear that the agent forgot to put the expiry date on the completed form.
The affidavit material filed by the respondent is in my view very clear. It is made particularly obvious by the affidavit filed by Mr Malizani that the applicant did not provide to the respondent the credit card details necessary to enable the respondent to obtain payment of the fee that was required to be paid.
In the circumstances, it is clear that I should order that the application be dismissed with costs, and I will do so.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 18 March 2013
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