Australian Immigration Daily News

What is the story if you submit an application for merits review to the Administrative Appeals Tribunal, and there is some “irregularity” relating to payment of the prescribed fee? 

For example, what is the situation if the application is made on a “paper form” and the part of the form calling for the signature of the credit card holder to authorize payment of the fee is not actually signed? 

What happens if your client is granted a reduction of the application fee on grounds of financial hardship but fails to pay the fee within the time specified by the Tribunal? 

What is the likely outcome if the client asks for a reduction in the application fee, but the application is refused by the Tribunal?

And what is the circumstance if a cheque that is submitted with the application “bounces”? 

In these cases, is your client simply “out of luck”?  

In other words, where the application fee is not paid within the relevant appeal period, is it always the case that the AAT will lack jurisdiction to hear the case?  

Will non-payment of the application fee within the appeal period cause the application for merits review to be “dead on arrival?” 

It might appear that the answers to all of these questions are perfectly straightforward and obvious! 

After all, section 347(1)(c) of the Migration Act specifically provides that an application for merits review must “be accompanied by the prescribed fee”. 

However, as the famous lyric from Gilbert & Sullivan’s operetta, “HMS Pinafore” says: “Thins are seldom what they seem!” The answers to the questions at the beginning of this article are not, in fact, totally straightforward.  And it is indeed the caser that these questions have been the subject of considerable litigation before the Federal courts. (Could it possibly be that lawyers will litigate anything??) 

Fortunately for all of us who might be groping in the darkness for answers (!), there have been a couple of decisions from the Federal courts this month which provide helpful guidance!! 

Let’s take the first situation, where the section of the paper form calling for a signature of the cardholder who is attempting to pay the application fee by credit card has not been filled out, and there is no signature in the space on the form that calls for the signature to be provided? 

That was the issue in two companion cases, Pioneer Glass Pty Ltd v Minister for Immigration & Anor (2016) FCCA 1 (19 February 2016) and Park & Anor v Minister for Immigration & Anor, (2016) FCCA 4 (19 February 2016). 

In Pioneer, a company sought review against the refusal of its application for approval as a Standard Business Sponsor.  The Tribunal found that because a signature had not been provided on the application form, the application fee had not been paid within the appeal period. The Tribunal therefore concluded that it did not have jurisdiction. 

In the related Park case, which involved applications for temporary skilled business visas, the Tribunal determined that it did not have jurisdiction over applications for review of refusals because the application of the purported sponsor (Pioneer) had been refused by the Department, and there was, in the Tribunal’s view, no pending application for review of Pioneer’s sponsorship application (since the Tribunal had decided that it did not have jurisdiction to review the refusal of that application). 

So, what did the Federal Circuit Court decide?  It found that it was sufficient that the relevant credit card details had been provided on the application form.  

In the Court’s view, the provision of the credit card details themselves was all that was necessary for the Tribunal to process payment of the application fee.  It was the Court’s conclusion that the Tribunal’s policy of requiring a signature below the credit card details was just not necessary to enable the Tribunal to charge the application fee against the card. Asking for the signature was only something that the Tribunal sought to protect itself against possible fraud. 

Thus, in the end, the Court determined that the applicant’s failure to provide a signature along with the credit card details was “of little moment”. 

So, the result, “in a nutshell”? Failing to provide a signature under the credit card details on the application form was not “fatal” to the application.  As long as the credit card details themselves are given, the Tribunal can process payment.  So, as long as these details are given to the Tribunal within the appeal period, the Tribunal does have jurisdiction. 

And the consequence for the companion Park case?  Well, since the Court found that there was in fact a valid pending application for merits review of the refusal to grant Standard Business Sponsorship, it ruled that the Tribunal did also have jurisdiction to hear applications for review of the refusal of the temporary skilled business visas. 

What about the case where the Tribunal has granted a reduction in the application fee on grounds of financial hardship, and the reduced fee is not paid within the time specified by the Tribunal? 

That is what happened in Benissa v Minister for Immigration and Border Protection (2016) FCA 76 (12 February 2016). 

In that case, the visa applicant requested a reduction of the amount of the prescribed fee. The Tribunal granted the request, and told the applicant that he had to pay the reduced fee within 14 days.  The applicant then asked for additional time in which to pay the fee, beyond the 14 day time period originally specified by the Tribunal, and this request was also granted.  However, the applicant still failed to pay the reduced fee within the further extended time period that had been allowed by the Tribunal. 

In this circumstance, the Tribunal concluded that it did not have jurisdiction to hear the application. Both the Federal Circuit Court and the Federal Court determined that the Tribunal’s decision had been correct. The basic principle: failure to pay a reduced application fee within such reasonable time period as may be specified by the Tribunal strips the Tribunal of jurisdiction. 

In Benissa, the Federal Court reviewed the case law dealing with the other questions identified at the beginning of this article: 

First, the simplest case: Where the review applicant purports to submit payment of the application fee by cheque, and that cheque “bounces” (or is “dishonoured”) then the application will be found not to have been accompanied by the required application fee, and the Tribunal will not have jurisdiction. See Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99. 

And lastly, what if an applicant seeks a reduction of the fee and the request is refused? And further, the applicant asks the Tribunal to reconsider its refusal to reduce the fee?  The answer, provided by the Full Court in the case of Braganza v Minister for Immigration and Multicultural and Indigenous Affairs (2001) FCA 318: provided that the fee is paid within a reasonable time after the request for a fee reduction is rejected, the Tribunal will have jurisdiction. 

The lesson of these cases: Just as paying the visa application charge is an essential requirement for a valid application, paying the AAT’s fee is essential for a valid merits review application. 

One may wonder, given how expensive the visa application charges have become, whether the additional fee charged by the AAT for a merits review application is really appropriate, and whether the fee should be lower than it is.  Perhaps these are questions for another day (?) 

Over to you for your thoughts!

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837