FEDERAL COURT OF AUSTRALIA

Cabrera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 129

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the respondent's costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The four appellants, each citizens of Chile, appeal from a decision of the Federal Circuit Court of Australia (Circuit Court) dismissing the appellants’ application for judicial review of a determination made by an officer in the Department of Immigration and Border Protection (departmental officer). The departmental officer determined that the appellants’ application for an Employer Nomination (Permanent) (Class EN) Subclass 186 visa (visa) was invalid.

2    The appellants contend, broadly, that the departmental officer committed a jurisdictional error by misapplying provisions of the Migration Act 1958 (Cth) (Act) and the Migration Regulations 1994 (Cth) (Regulations), thereby leading to the erroneous conclusion that the appellants’ visa application was invalid. The appellants argue that their application was valid, and that the matter should be remitted to the respondent (Minister) for re-determination.

3    For the reasons expressed below, the departmental officer was correct to conclude that the appellants’ visa application was invalid. In particular, although the appellants had lodged their application, and transferred payment of the relevant visa application charge, prior to the expiry of their Temporary Work (Skilled) visas (previous visas), the practical effect of reg 2.12JA(3) of the Regulations, as detailed below, is that the payment of those charges is taken not to have been made until after the expiry of their previous visas. The result is that not all of the necessary criteria governing the validity of their visa application was satisfied.

4    As such, no jurisdictional error was committed by the departmental officer. The appellants’ appeal to this Court is accordingly dismissed.

Relevant legislation

5    The issue in dispute in the present case is one of statutory construction. Before outlining the background to the appellants’ visa application, it is convenient to introduce the relevant provisions of the Act and Regulations.

The Act

6    Div 3 of Pt 2 of the Act provides the mechanism for a non-citizen to apply for a range of visas to authorise that person to be in Australia. Section 45(1), as contained within that Division, provides that, “[s]ubject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class”.

7    The Minister, however, is only required to consider a valid application for a visa: ss 47(1), (3) of the Act. Section 46 describes when a visa application is valid, and when it is invalid. To be valid, the application must, amongst other things, satisfy the criteria and requirements prescribed by the Regulations: ss 46(1)(b), (3), (4)(a). Additionally, and relevantly, for a visa application to be valid, it is necessary that, “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”: s 46(1)(ba) (emphasis added).

8    Applying for a visa also comes at a cost. Section 45A of the Act states that “[a] non-citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application”. The visa application charge is to be calculated in accordance with s 45B. Section 45C empowers the Regulations to address various aspects regarding to visa application charge, including “the way … in which visa application charge is to be paid”: s 45C(2)(ii).

The Regulations

9    Pt 2 of the Regulations prescribes various matters in relation to visas under the Act. Div 2.2 (regs 2.06A–2.12AA) concerns visa applications and Div 2.2A (regs 2.12C–2.12L) concerns visa application charge. It is pertinent to note a few key regulations.

10    Reg 2.07 sets out various provisions regarding visa applications. Subreg 2.07(1) provides as follows:

2.07 Application for visa—general

(1)     For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:

(a)     the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and

    (b)     regulation 2.12C and the relevant item of Schedule 1 set out:

(i)     the visa application charge (if any) payable in relation to an application; and

(ii)     the components that may be applicable to a particular application for the visa; and

(c)     the relevant item of Schedule 1 sets out other matters relating to the application.

…

11    Reg 2.12C, as referred to above in reg 2.07(1)(b), prescribes various provisions in relation to the amount of visa application charge. Reg 2.12C(1) provides as follows:

2.12C Amount of visa application charge

(1)     For subsection 45B(1) of the Act, the visa application charge (if any) in relation to an application for a visa of a class to which an item of Schedule 1 relates is the sum of:

(a)     the first instalment (which is payable when the application is made), consisting of the following components:

(i)     the base application charge or the additional applicant charge;

(ii)     any subsequent temporary application charge;

(iii)     any non-Internet application charge; and

(b)     the second instalment (which is payable before the grant of the visa).

…

12    A critical provision for the determination of the present case is reg 2.12JA, which specifies the ways in which visa application charge is to be paid. It relevantly provides as follows:

2.12JA Payment of visa application charge for Internet application

(1)     The visa application charge in relation to an Internet application must be paid by:

(a)     credit card, in accordance with the instructions given to the applicant as part of making the Internet application; or

(b)     funds transfer, in accordance with the instructions given to the applicant as part of making the Internet application; or

(c)     the PayPal system, in accordance with the instructions given to the applicant as part of making the Internet application.

…

(3)     If the visa application charge is paid in accordance with paragraph (1)(b), the charge is taken not to have been received until the payment is electronically matched to the applicant’s Internet application form.

…

13    Reg 2.12JA was inserted into the Regulations by item 1 of Sch 2 to the Migration Amendment Regulations 2004 (No 8) (Cth) (Amending Regulations). That item commenced on 23 December 2004.

14    Regs 2.07 and 2.12C, as extracted above, each referred to the relevant item in Sch 1 to the Regulations. For the visa sought by the appellants—an Employer Nomination (Permanent) (Class EN) Subclass 186 visa—the relevant item in Sch 1 is item 1114B, which provides as follows:

1114B Employer Nomination (Permanent) (Class EN)

(1)     Form: The approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).

(2)     Visa application charge:

(a)     first instalment (payable at the time the application is made):

    [Table setting out amount of instalments for particular applicants]

(b)     second instalment (payable before grant of visa):

    [Table setting out amount of instalments for particular applicants]

(3)     Other:

(a)     An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).

(b)     An applicant may be in or outside Australia, but not in immigration clearance.

(c)     An applicant in Australia must hold:

(i)     a substantive visa; or

(ii)     a Subclass 010 (Bridging A) visa; or

(iii)     a Subclass 020 (Bridging B) visa; or

(iv)     a Subclass 030 (Bridging C) visa.

The appellants’ visa application

15    The appellants’ previous visas—each a Temporary Work (Skilled) visa—had an expiry date of 25 June 2017.

16    On 24 June 2017, the day prior to the expiry of those visas, the appellants initiated the online application for their new visas. The first appellant was the primary applicant. The second, third and fourth appellants were included in his application as members of his family unit. The appellants chose to pay the first instalment of visa application charge by means of the electronic funds transfer system known as “BPAY”. The application and payment were submitted on that date.

17    The payment of the first instalment of visa application charge by the appellants was not, however, “electronically matched” with their online application form until 26 June 2017, the day after the expiry of the appellants’ previous visas. The result, in accordance with the terms of reg 2.12JA(3) of the Regulations, was that the payment of the charge was “taken not to have been received” until 26 June 2017.

18    On 10 July 2017, the departmental officer wrote to the appellants to notify them that their visa application was invalid because, at the time they paid their visa application charge (according to the departmental officer, 26 June 2017), they were not the holders of a visa of a type listed in item 1114B(3)(c) of Sch 1 to the Regulations. This was because each appellant had ceased to be the holder of a requisite visa on 25 June 2017 (upon expiry of their previous visas). The departmental officer therefore determined not to consider their application because the appellants had not made a valid application for a visa: s 47(3) of the Act.

Federal Circuit Court’s decision

19    On 24 July 2017, the appellants applied to the Circuit Court for judicial review of the departmental officer’s determination (although the appellants had incorrectly referred to the departmental officer as a “delegate” of the Minister in their application).

20    The appellants’ Amended Application to the Circuit Court was in the following terms:

1.     The determination to the effect that the Application lodged on 24 June 2017 was invalid is infected by jurisdictional error in its reliance upon Regulation 2.12JA of the Migration Regulations 1994. The Regulation is ultra vires the Act and is not a permissible exercise of powers by reference to sections 504 and 505 of the Migration Act 1958.

In the alternative,

2.     The application lodged on 10 June 2017 was in conformity with the requirements of schedule 1, Criterion 186 in that the correct form was used and the correct fee paid. The filing fee was paid by BPay on 24 June 2017 in conformity with the procedure outlined in subregulation (1) (b) of Regulation 2.12JA and the electronic matching (‘electronically matched) occurred at the moment of the electronic lodgement and the BPAY transaction on or about 24 June 2017 or later but in any event not after midnight on 25 June 2017.

3.     Regulation 2.12JA is invalid because it is “unreasonable”, in the sense that it is so oppressive and capricious that no reasonable mind can justify it.

21    At the commencement of the hearing in the Circuit Court, the appellants sought leave to rely on proposed ground of review 3, however the Circuit Court refused leave on the basis that it had insufficient merit to justify the late amendment: Cabrera & Ors v Minister for Immigration [2019] FCCA 1540 (FCCA Reasons) at [4]-[8].

22    Leave was also sought by the appellants at the hearing to introduce a new ground of review 4, which provided as follows:

The delegate committed jurisdictional error by misinterpreting and misapplying reg.2.12JA in so far as the delegate interpreted the Regulations as having the effect of differing [sic] the date the application was made until the date the application was electronically matched with the BPay payment.

23    The Circuit Court also refused leave for the appellants to rely on this ground due to insufficient prospects of success: ibid at [9]-[12]. The consequence is that the Circuit Court ultimately only considered the merits of ground of review 1, as extracted above at [20], which contended that reg 2.12JA of the Regulations was ultra vires the Act.

24    The Circuit Court held that reg 2.12JA of the Regulations was valid and, in particular, that reg 2.12JA(3) was not inconsistent with the Act: FCCA Reasons at [46]. The appellants’ judicial review application was accordingly dismissed: ibid at [48].

Appeal to this Court

25    On 24 July 2019, the appellants appealed the Circuit Court’s decision to this Court. The appellants’ notice of appeal specified six grounds of appeal, however ultimately only one ground—ground of appeal 6—was pressed at the hearing. That ground provided the following:

Ground 6: The primary judge erred in concluding that the visa applications that are the subject of these proceedings were not validly made

Particulars

a.     The visa applications that were lodged by the Appellants on 24 June 2017 complied with the requirements of Schedule 1 of the Migration Regulations 1994 relating to “Independent – Skilled” (Subclass 186) visa in that the correct form was used for the lodgement of the applications and the correct visa application charges were paid and were accepted as being fully paid by the Department. The visa application charges were paid by the Appellants by means of the electronic funds transfer system “BPAY” on 24 June 2017 in conformity with the procedure outlined in sub-regulation (1) (b) of Regulation 2.12JA and the electronic matching of the payment of the visa application charges occurred at the moment of the electronic lodgement and the BPAY transaction on or about 24 June 2017 or later but in any event not after midnight on 25 June 2017.

26    To briefly interpolate, it may be observed that the particulars to ground of appeal 6 are in substantially the same form as the particulars to ground of review 2 in the Circuit Court, which was abandoned by the appellants in their Amended Application.

27    Although the appellants continued at the hearing in this Court to rely on the primary characterisation of the alleged error under ground of appeal 6—that the Circuit Court erred in concluding that the appellants’ visa application was not validly made—the basis for that contention shifted from the particularisation provided in the notice of appeal. The particulars extracted above stated that the “electronic matching of the payment of the visa application charges occurred at the moment of the electronic lodgement and the BPAY transaction on or about 24 June 2017”. However, during the hearing, the solicitor advocate representing the appellants, Mr Arch, conceded that there was no evidence to suggest that the “electronic matching” occurred on any date other than 26 June 2017 (being the date stated in the letter from the departmental officer on 10 July 2017).

28    The appellants nonetheless argued that, despite the electronic matching having occurred on 26 June 2017, the appellants’ visa application was, as a matter of statutory construction, not invalid.

Appellants’ submissions

29    The appellants’ submission that their visa application was valid primarily hinged on their interpretation of reg 2.12JA(3) of the Regulations. The appellants submitted, in summary, that the departmental officer fell into error in conflating the separate and distinct concepts of the “making” of a visa application with the concept of the “validity” of a visa application. This error, it was submitted, caused the primary judge to proceed upon the basis that reg 2.12JA(3) had application to the “timing” of the making of a visa application (as opposed to merely the receipt of a payment), and to read the regulation as if it provided that an application is not “made” until the relevant visa application charge is electronically matched with the application. The appellants submit that such an interpretation of reg 2.12JA(3) cannot be supported.

Minister’s submissions

30    The Minister identified that the particulars to ground of appeal 6 were materially identical to those particulars supporting ground of review 2 in the Circuit Court. As ground of review 2 was expressly abandoned by the appellants and not re-agitated at the hearing before the Circuit Court, the Minister submitted (correctly) that the appellants required leave to advance ground of appeal 6.

31    The Minister submitted that leave should be refused for the following reasons:

(a)    the Minister is prejudiced by ground of appeal 6. The Minister submitted that, had the ground been raised in the Circuit Court, the Minister would have taken steps to adduce evidence pertaining to those facts and to prove that the visa application charge had not been electronically matched with their visa application on or before 24 June 2017;

(b)    the issues raised by the particulars to ground of appeal 6 were expressly abandoned below by the appellants, and the Circuit Court was entitled to act on that concession. The Minister submitted that, in the absence of a compelling explanation, it would not be appropriate to permit the appellants to agitate those issues before this Court; and

(c)    in any event, ground of appeal 6 is untenable. The Minister submitted that the appellants have adduced no evidence in this Court to prove the facts asserted in the particulars to that ground. The Minister submitted that it is for the appellants to show that they have satisfied the requirements of s 46(1)(ba) of the Act and item 1114B(2)(a) of Sch 1 to the Regulations (as read with regs 2.12JA(l)(b) and (3)) to prove that the first instalment of visa application charge had been electronically matched with their online application on or before 24 June 2017. The Minister contended that the appellants led no such evidence in the Circuit Court and have not sought to do so in this Court.

Relevant principles – Leave to raise new ground on appeal

32    The principles governing the exercise of discretion to grant leave to raise a new ground on appeal were explained by Kiefel, Weinberg and Stone JJ in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48]:

Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. …

33    These principles have been adopted and applied in many subsequent decisions, including in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [57] per Rangiah, Perry and Bromwich JJ.

Consideration

Making of an “application”

34    The appellants contended that a visa application can be made for current purposes without it being valid. In short, the answer to this contention depends on the context in which, and the purposes for which, an “application” is referred to as having been “made”.

35    There are occasions in the Act and Regulations that refer to a visa application being “made” in the sense of lodged or submitted by a visa applicant. For example, the first instalment of visa application charge is payable by the visa applicant as at the time his or her application is “made”, i.e. lodged or submitted: s 46(1)(ba) of the Act; item 1114B(2)(a) of Sch 1 to the Regulations; see Mohammed v Minister for Immigration and Border Protection [2015] FCA 184; 231 FCR 243 (Mohammed) at [27] per Perry J. However, for the purposes of the word “application” or “apply” under ss 45 and 46 of the Act, the appellants’ submission is inconsistent with authority that establishes the proposition that, until all of the criteria governing the validity of a visa application have been satisfied, the application, even if physically lodged or submitted, is not an application that has been “made” in the relevant sense; it is inchoate: Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908; 101 FCR 352 (Nader) at [54] and [56] per Hill J; Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; 100 FCR 495 at [19] per Spender J and [70] per Gyles J; Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456; 103 FCR 486 at [77] per Ryan, Sackville and Emmett JJ; Minister for Immigration and Citizenship v Chan [2008] FCAFC 155; 172 FCR 193 at [14] per Marshall J and [52] per Lander J.

36    Accordingly, the word “application” or “apply” in ss 45 and 46 of the Act does not refer to the mere lodgement of a visa application form, but to “the process of application, notwithstanding that the process involves completion of an application form”: Nader at [54]. All the relevant criteria must be satisfied before an application is valid: see Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [109] per Heydon J. One relevant criterion, pursuant to s 46(1)(ba) of the Act, is that any visa application charge has been paid: Mohammed at [28]. At what point in time, then, was the first instalment of visa application charge “paid” by the appellants in the present case?

Operation of reg 2.12JA(3)

37    Reg 2.12JA(3) of the Regulations provides that, where (such as in the present case) visa application charge is paid by funds transfer, “the charge is taken not to have been received until the payment is electronically matched to the applicant’s Internet application form”.

38    The appellants sought to restrict the operation of reg 2.12JA(3) to merely the receipt of a payment by the Department, in distinction to the transferral of funds by a visa applicant. According to the appellants, the work of reg 2.12JA(3) was to mark the time at which the payment of visa application charge comes into the hands of the Department. Assuming all other criteria are met, it is at that point in time, according to the appellants, that the application converts from one that is inchoate to one that is perfected (and therefore valid). As such, as the appellants’ argument goes, the validity of a visa application is conditional on the Department eventually electronically matching the payment, but that event need not occur prior to, relevantly, the expiry of a visa applicant’s previous visa.

39    There are various problems with the appellants’ argument. First, even if it were correct, there is no room in this statutory scheme for retrospective validation of an invalid application. An application is only valid if it meets the requirements for a valid application, at which point the obligation to consider the application is engaged: Mohammed at [20], citing Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 at 261 per Carr J and 279-280 per RD Nicholson J, with Jenkinson J agreeing; Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254 at 261 per Finkelstein J and Muradzi v Minister for Immigration and Citizenship [2011] FCA 976 at [34]-[35] per Tracey J; see also Nader at [51] and [56]. As such, in the present case, even if the “condition” in reg 2.12JA(3) was satisfied as at the date of electronic matching on 26 June 2017, that satisfaction would not re-enliven an application that, by that time, was invalid on a separate basis (because the appellants no longer held a relevant visa).

40    In any event, I reject the appellants’ submission that reg 2.12JA(3) creates a condition of validity distinct from the transferral of funds by the visa applicant. In my view, the purpose of reg 2.12JA is to provide clarity and certainty as to the time at which a visa applicant has paid his or her visa application charge by different means. As such, although reg 2.12JA(3) expressly refers to the receipt of visa application charge, rather than payment of that charge, those events are, properly construed, the same thing. When reg 2.12JA(3) speaks of the charge being taken to not have been “received”, its intention and effect is that any payment by funds transfer of visa application charge is taken not to have been made until the amount transferred by the visa applicant is electronically matched to the applicant's Internet application form. Accordingly, although reg 2.12JA(3) does not affect the time at which a visa application is “made” in the sense of lodged or submitted by an applicant, it does have the effect of deferring the timing of when a valid visa application is “made”.

41    This interpretation is consistent with the explanation provided in the Explanatory Statement to the Amending Regulations. That statement outlined the operation of the new reg 2.12JA as follows:

Item [1] – Regulation 2.12JA

This amendment substitutes regulation 2.12JA of Part 2 of the Principal Regulations with new regulation 2.12JA. New regulation 2.12JA provides that a visa application charge in relation to an Internet application must be paid by either credit card or funds transfer in accordance with the instructions given to the applicant as part of making the Internet application.

New regulation 2.12JA also provides that:

•    if the visa application charge is paid by credit card, payment of the charge is taken to have been received only when the correct amount of the payment has been confirmed by the issuer of the credit card; and

•    if the visa application charge is paid by funds transfer, payment of the charge is taken to have been received only when the payment amount is electronically matched to the applicant’s Internet application form.

Subsection 46(1) of the Act includes the requirement that, for an application for a visa to be valid, any visa application charge that the regulations require to be paid at the time when the application is made has been paid.

Certain information identifying the applicant must be provided at the time of making the payment and will be used to electronically match the payment to the applicant’s Internet application form. The details of how to ensure correct information is provided for this purpose will be included in the instructions given to the applicant as part of making the Internet application. Advice about the status of a given payment will be made available to the applicant on the Department of Immigration and Multicultural and Indigenous Affairs’ (the Department’s) web site.

In the event that an underpayment is received, information regarding the additional payment required to reach the correct amount of the visa application charge will be available to the applicant via the Internet. Payment will not be deemed to have been made until the correct amount of the visa application charge is received and electronically matched to the applicant’s Internet application form.

Monies received that amount to an overpayment will be considered valid payments. In the event of an overpayment, notification in relation to the reimbursement of the amount overpaid will be available to the applicant via the Internet.

Applicants will be able to view the progress of their application on the Department’s web site, which will display the date the visa application charge is taken to have been received in accordance with new regulation 2.12JA.

When submitting an Internet application form, applicants will be told that they must pay the visa application charge within a particular period from the date of submitting that form. If no payment is received within that period, applicants will be required to complete a new application form.

(Emphasis added.)

(Explanatory Statement, Migration Amendment Regulations 2004 (No 8) (Cth) at 11-12.)

42    The appellants relied on the decision of Robertson J in Chitrakar v Minister for Immigration and Border Protection [2017] FCA 533 (Chitrakar (FCA)). However, my view is that Chitrakar (FCA) does not provide strong support to their argument. In that case, the visa applicant’s last substantive visa was to cease on 20 March 2015. The visa applicant submitted her application form on 19 March 2015, which was received by the Department either on 19 or 20 March 2015. However, funds were not available for the payment of the visa application charge when the application was received by the Department. It appeared that the visa applicant requested that payment be made on a card but, on 19 March 2015, an unexpected charge for health insurance was made on the card and, as a result, the available balance was insufficient to meet the application charge for the visa. Funds were not available until 24 March 2015. The Administrative Appeals Tribunal held that the application was only validly made on that latter date.

43    Upon judicial review, the task for the Circuit Court was, like in the present case, to identify when the visa application was “paid” for the purposes of s 46(1)(ba) of the Act: Chitrakar v Minister for Immigration [2016] FCCA 3224 (Chitrakar (FCCA)) at [18] per Judge Smith. The Circuit Court relied on the decisions of Lehane J in Kirk v Minister for Immigration & Multicultural Affairs [1998] FCA 1174; (1998) 87 FCR 99 (Kirk), Branson J in Vumentala v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 744 (Vumentala) and Besanko J in Khan v Minister for Immigration & Citizenship [2009] FCA 443 (Khan) to conclude, apparently, that the relevant test was whether, when the application was lodged by the visa applicant, there were sufficient funds available in the applicant’s debit card account to put the Department in the position of being able to require Westpac to pay the charge: see Chitrakar (FCCA) at [40]. Upon appeal, the Circuit Court’s decision was upheld by Robertson J in this Court in Chitrakar (FCA).

44    The relevant administrative decision upon judicial review in Chitrakar was made after the commencement of reg 2.12JA. As such, on its face, the Circuit Court’s decision in Chitrakar (FCCA), as upheld by Robertson J, appears to lend support to the appellants’ construction of reg 2.12JA in the present case. However, there are various reasons why Chitrakar does not favour the appellants as contended.

45    First, it appears that reg 2.12JA was not raised by the parties in Chitrakar as that provision was not referred to in the reasons of either the Circuit Court or Robertson J.

46    Second, the cases relied on by the Circuit Court in Chitrakar (FCCA)—Kirk, Vumentala and Khan—do not support the construction of reg 2.12JA advanced by the appellants in the present case. This is because Kirk and Vumentala both related to the judicial review of administrative decisions made prior to the commencement of reg 2.12JA. Moreover, Khan (in which there was no reference to reg 2.12JA) and Kirk involved decisions in a different statutory context, which required certain applications for review to be accompanied by a prescribed fee.

47    Third, although Robertson J upheld the decision of the Circuit Court, his Honour did not expressly adopt the reasoning of the Circuit Court. The visa applicant was unrepresented before Robertson J: Chitrakar (FCA) at [21]. She did not file written submissions and her oral submissions were of a general nature and not directed to the complex matters of statutory construction in question in the present case: ibid. Moreover, her grounds of appeal were not directed to the relevant test applied by the Circuit Court: ibid at [19]. Robertson J merely held that no jurisdictional error as contended had been shown by the appellant: ibid at [26], [29] and [30].

48    Robertson J did, however, add the following comments:

[27]     … I see no error in the conclusion that the visa application charge was not paid on 19 or 20 March 2015.

[28]     By virtue of the operations of the provisions to which I have referred, both of the Migration Act and the Migration Regulations, the non-payment of the visa application charge meant that the application for the new visa was not made on 19 or 20 March 2015. It followed that the appellant did not meet the requirements of cl 572.211 as she was not at the time of her (valid) application for the new visa the holder of the subclass 485 visa she had previously held. Neither did she satisfy cl 572.211(3) which dealt with circumstances where the applicant for the visa need not be the holder of a substantive visa.

49    Even assuming that Robertson J had considered the effect of reg 2.12JA, these comments do not support the inference that his Honour was concluding that, where a visa applicant makes an Internet application, payment of their visa application charge (by any of the means in reg 2.12JA(1)) will be taken to have occurred upon lodgement of the application. All that these comments conclude is that no valid application was made upon receipt of the application (but not the funds) by the Department on 19 or 20 March 2015. That is not inconsistent with the interpretation of reg 2.12JA(3) that I have reached above.

Ordinary principles regarding commercial transactions

50    Furthermore, contrary to the appellants’ submission, the ordinary principles governing payments in commercial transactions made by cheque have no relevant role to play in the immediate context. As the appellants raised, under common law principles, when a cheque is given and accepted in payment of an amount due, the amount due will be treated as having been paid on the date the cheque is given provided that the cheque is met on presentation: Kirk at 103, citing Tilley v Official Receiver in Bankruptcy [1960] HCA 86; 103 CLR 529 at 535 per Kitto J, 532-3 per Dixon CJ and 537 per Menzies J and National Australia Bank Ltd v KDS Construction Services Pty Ltd [1987] HCA 67; 163 CLR 668 at 676 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ. However, to the extent those authorities are relevant to discerning the timing of the payment by funds transfer, reg 2.12JA(3) operates to oust those common law principles.

51    Kirk does not support the appellants’ argument that, notwithstanding reg 2.12JA(3), the common law principles regarding the timing of payment continue to apply. As indicated above, Kirk was decided in a different statutory context. That case involved the requirements for the making of an application for an internal review under the former s 339 of the Act. That section required that an application for review had to be in the approved form, given to the Secretary of the Department within the prescribed period and accompanied by the prescribed fee. The application for review was accompanied by a cheque that was subsequently dishonoured. Another cheque was later delivered after the expiry of the period within which an application for review was required to be made.

52    Lehane J held in Kirk that the application for review had not been properly made, as there had been non-compliance with s 339. In the course of doing so, his Honour observed (at 103) the following:

There is nothing in the context of the Migration Act or the Regulations which excludes that well-established principle which, where a cheque is dishonoured, does not depend for its operation on the reason why a cheque is dishonoured. If the cheque is in fact dishonoured, then the condition fails and payment is taken not to have been made.

53    Kirk is distinguishable on the basis that it related to an administrative decision made prior to the commencement of reg 2.12JA, and was also decided in a different statutory context to the present case. Any “well-established principles” that would assist the appellants in relation to the timing of the payment of the first instalment of visa application charge have been displaced by reg 2.12JA(3).

54    Neither does the decision of Barnes FM in Butcher v Minister for Immigration [2005] FMCA 880 aid the appellants. The visa applicant in that case elected to pay visa application charge by credit card. Barnes FM held that the visa application charge was “paid” for the purposes of s 46(1)(ba) of the Act when the visa applicant completed the visa application form: ibid at [50]. However, there is no reference to reg 2.12JA in the reasons for judgment. This is to be expected because the date of the decision under review in Butcher—12 February 2004—pre-dated the commencement of reg 2.12JA on 23 December 2004. Therefore, even assuming Butcher represented binding precedent (which it does not), the facts of Butcher are distinguishable.

Application of reg 2.12JA(3) in the present case

55    In the present case, although the appellants lodged their visa application on 24 June 2017, their application was not validly made on that date. This is because the criterion in s 46(1)(ba) of the Act and item 1114B(2)(a) of Sch 1 to the Regulations—that the first instalment of visa application charge had been paid—was not satisfied. It had not been satisfied because, pursuant to reg 2.12JA(3), the payments were not received, and therefore not “paid”, until the amounts transferred by the appellants were electronically matched on 26 June 2017. No evidence was adduced by the appellants before the Circuit Court or this Court to demonstrate otherwise.

56    Moreover, even after the electronic matching on 26 June 2017, the appellants’ visa application was not valid as at that date. This is because, as the applicants’ previous visas had expired on 25 June 2017, the criterion in item 1114B(3)(c) of Sch 1 to the Regulations—that the visa applicants hold a relevant visa—was not satisfied.

57    It is competent, and practically necessary, for the departmental officer in the present case to have formed a view about the validity of the appellants’ application. However, the validity of a visa application is ultimately a question for the Court to decide: Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523 at [26]-[27] per Yates, Robertson and Wigney JJ.

58    In the circumstances of this case, my view is that the departmental officer was correct to determine that the appellants’ visa application was invalid. From the appellants’ perspective, this is an unfortunate consequence of lodging their application so close to the expiry of their previous visas. However, it is a consequence consistent with the mechanism prescribed in reg 2.12JA of the Regulations.

Discretion to grant leave to raise new ground

59    My view is that leave for the appellants to raise ground of appeal 6 should be refused for the following reasons.

60    First, for the reasons outlined above, there is insufficient merit in the argument underpinning the ground of appeal.

61    Second, the issues raised by the particulars to ground of appeal 6 were abandoned in the appellants’ Amended Application in the Circuit Court. The appellants were legally represented at that time. There is no explanation from the appellants as to why this occurred, and why they ought to now be able to return to those issues.

62    Third, the Minister will suffer real prejudice should leave be granted. I am satisfied that, if this ground were advanced previously by the appellants, the Minister would have taken steps to adduce evidence to prove that the visa application charge had not been electronically matched with the appellants’ visa application on or before 24 June 2017.

63    Fourth, and relatedly, it was for the appellants to demonstrate that the visa application charge had been electronically matched with their visa application on or before 24 June 2017. However, the appellants have not adduced any evidence in this Court to prove those facts.

Conclusion

64    For the reasons expressed above, my view is that leave to raise ground of appeal 6 should be refused. As the appellants did not press any other ground of appeal, it follows that their appeal is dismissed. The appellants must pay the Minister’s costs of and incidental to the appeal.

Associate:    

Dated:        17 February 2020

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