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.