Australian Immigration Daily News

Are Australia’s migration laws too rigid and inflexible?

Are they applied in a way that is too rigid and inflexible?

Do they leave too little room for compassion, or for unforeseen circumstances truly beyond an applicant’s control?

Please do not all answer at once! You might crash the entire Internet with your comments! And we can’t allow that to happen, can we?

Consider, though, the following circumstances described in a decision handed down by Justice Robertson of the Federal Court on 16 May 2017, Chitrakar v Minister for Immigration and Border Protection (2017) FCA 533:

The applicant was in Australia as the holder of a Subclass 485 “Temporary Graduate” visa.

That visa was due to expire on 20 March 2015.

On 19 March 2015, the day before her 485 visa was scheduled to cease, she submitted an application for a Subclass 572 student visa to the Department.  That application was received by the Department either on 19 or 20 March 2015 (although nothing in the case turned on when the visa application was actually received).

The criteria thenin force for the grant of a Subclass 572 visa required that, if the application was made in Australia, that the applicant be the holder of one of several different kinds of substantive visas. The list of substantive visas that could be held in order to satisfy the criteria for the grant of the 572 visa included that the applicant could be the holder of a 485 visa.

So what went wrong?

The applicant attempted to pay the visa application charge with her credit card.

However, an unexpected charge for health insurance was made on the card!

Consequently, on the date that the application for the Subclass 572 visa was made, there were not adequate funds in the applicant’s credit card account to cover the visa application charge.

It was not until the 24^th of March 2015 that there were adequate funds in the credit card account for the VAC.

The practical result was that the Subclass 572 visa application was not validly made before the previously held 485 visa expired.

The  reason? Section 46 of the Migration Act provides that a visa application is not validly made if, and only if “any fees payable in respect of it under the regulations have been paid”.

So the applicant was unable to satisfy the criteria for the grant of the new Subclass 572 visa that she sought.

That was because at the time that the application for the 572 visa was validly made – that is, at the time that there were sufficient funds in her credit card account to pay the VAC – she was no longer the holder of the relevant substantive visa, being the 485 visa.

And so, even though the Tribunal described the circumstances of the case in its written reasons as “unfortunate”, the Minister, in his submissions to the Federal Court, also described the circumstances of the case as unfortunate, and Justice Robertson of the Federal Court also agreed that the circumstances were unfortunate, all the combined misfortune was not enough to rescue the applicant! In Justice Robertson’s words, “unfortunate circumstances are not the subject of the Court’s jurisdiction” – only jurisdictional error is.

So, to put it all in a nutshell, the case offers what one might describe as a “double cautionary tale”:

1. Applicants must be careful to assure that there adequate funds are available on their credit cards to cover their visa application charges, and must be mindful that their applications won’t be considered to be validly made until the VAC is actually paid; and

2. It is not a wise course to wait until the last minute to file an application for a further visa! Things can go wrong, unexpected things can happen, and these unanticipated events can compromise an applicant’s ability to remain in Australia lawfully. So leaving things to chance can mean leaving things to chance, with the possibility of very undesirable consequences!

Wouldn’t it be so much better whenever possible to have some “breathing room” before the expiration of a current visa, so that if the unexpected does happen, there is time to try to fix the problem?

Don’t all answer at once, or break the Internet! The answer, of course, is “Yes!!!!”

Should there be some scope for flexibility and compassion in a case like this, universally described as "unfortunate"?

Would this applicant have a prayer if she were to seek Ministerial Intervention?

Again, don't break the Internet with your answers!