FEDERAL COURT OF AUSTRALIA

Vumentala v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 744

MIGRATION – validity of visa application – whether visa application charge paid when application made – attempted payment by credit card – incomplete credit card details – whether charge paid a question of fact

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 46, 47

Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566 distinguished

SRINIVAS REDDY VUMENTALA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 528 of 2004

BRANSON J

11 JUNE 2004

SYDNEY

THE COURT ORDERS THAT:

1.                  An order in the nature of certiorari issue quashing the decision of the respondent that the applicant’s application for a subclass 497 Graduate Skilled Temporary visa is invalid.

2.                  An order in the nature of mandamus issue requiring the respondent to consider the applicant’s application for a subclass 497 Graduate Skilled Temporary visa.

3.                  The respondent pay the applicant’s costs.

REASONS FOR JUDGMENT

introduction

1                     The applicant has invoked the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) seeking relief in respect of a decision of a delegate of the respondent that the applicant’s application for a subclass 497 Graduate Skilled Temporary visa is invalid. The only basis upon which it is suggested that the application is invalid is that the applicable visa application charge required to be paid at the time when the application is made was not paid.

statutory provisions

2                     The applicant’s application for a visa was made under the Migration Act 1958 (Cth) (‘the Act’). Section 46 of the Act governs the validity of visa applications. Relevantly subs 46(1) provides:

‘(1) …an application for a visa is valid if, and only if:

(ba) … any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; ….’

3                     The importance of the requirements of s 46 is manifest by s 47 of the Act which relevantly provides:

‘(1) The Minister is to consider a valid application for a visa.

…

(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.’

4                     It is agreed that the regulations required a fee of $165.00 to be paid when the applicant’s visa application was made.

facts

5                     The basic facts are not in dispute.

6                     At all relevant times the applicant was represented by Ms Toni Grunseit, a registered migration agent. On 12 March 2004 Ms Grunseit sent the applicant’s visa application, together with an application for the same class of visa made by another of Ms Grunseit’s clients, to the Adelaide Skilled Processing Centre by courier. It is accepted that the Adelaide Skilled Processing Centre processes on behalf of the respondent visa applications of the kind for which the applicant applied. A covering letter, which was signed by Ms Grunseit and identified her as Registered Migration Agent 0003276, accompanied each of the two visa applications. In each case the letter identified certain documents that were submitted for consideration. Amongst the documents identified was ‘Payment of Fee of $165 by credit card’. This reference is to be understood as a reference to Part K of the relevant visa application form. In the case of the applicant’s visa application, Part K had, regrettably, been only partially completed by Ms Grunseit.

7                     Part K of the relevant visa application form identifies three possible means by which the application charge can be paid: bank cheque, money order or credit card. If payment is to be made by credit card, Part K provides for the card type to be identified by ticking a box beside the relevant name (eg MasterCard, Bankcard, American Express etc). Space is provided for the relevant amount to be given in Australian dollars, for the credit card number and date of expiry to be given and for the cardholder’s name, telephone number and address to be given over the cardholder’s signature.

8                     In respect of Part K of the applicant’s visa application, Ms Grunseit ticked the box beside the words American Express. She failed to indicate the amount of the payment intended to be made. She omitted to record the final five digits of her fifteen-digit American Express card number. She otherwise provided the information and signature necessary to complete Part K of the application form.

9                     Ms Grunseit gave the complete number of her American Express card in Part K of the second visa application form which Ms Grunseit sent to the Adelaide Skilled Processing Centre under the same cover as the applicant’s visa application form. An e‑mail message dated 22 March 2004 from the Adelaide Skilled Processing Centre addressed to ‘Mr Grunseit’ indicates that the two visa applications sent by courier by Ms Grunseit on 12 March 2004 were processed together.

10                  Although Ms Grunseit failed to indicate the amount of the payment intended to be made in respect of the second visa application form, the respondent has accepted that the required visa application charge was paid in respect of that application at the time that the application was received at the Adelaide Skilled Processing Centre. The dispute in this case thus turns on the significance to be attached to the incomplete American Express card number in Part K of the applicant’s visa application.

11                  By letter dated 13 April 2004 addressed to the Director of Global Processing, DIMIA, Adelaide Skilled Processing Centre, the applicant’s solicitor forwarded an authorisation in the following terms signed by Ms Grunseit:

‘RE: SRINIVAS REDDY VUMENTALA

CLIENT ID 18992015867

I, Toni Louise Grunseit, hereby confirm my authorization of 11 March 2004 at Question 69 of Form 1182 for the above‑named, to deduct the amount of A$165 from my American Express Card as detailed below:

[number given]

Expiry Date: 05/06.’

12                  The respondent has made a number of formal admissions for the purpose of this proceeding. The following admissions are made by an Amended Notice Disputing Facts:

(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 of $165 from American credit card [number given] in the name of Toni Grunseit.

13                  At the hearing the respondent by her counsel made the following additional admission:

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.

consideration

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.

21                  There will be an order that the respondent pay the applicant’s costs.

Associate:

Dated: 11 June 2004