Australian Immigration Daily News

Have you ever filed a visa application at the last minute?

Like the day before a client's previous substantive visa is due to expire?

Maybe it's a better question to ask: "How many times have you filed an application at the last minute?"

Well, if that's the case, here is a very important cautionary tale:

I am working on a case in the Federal Courts that involves this situation, a next-to-last-minute visa application.

The clients were on expiring 457 visas and wanted to move to Employer Nomination - Subclass 186 visas.

Their applications were filed the day before their visas were due to expire.

The applications were filed on a Saturday, and were due to expire on a Sunday.

They paid the visa application charges by means of a BPAY funds transfer, and the payment did go through.

All fine, right.

NO!!!!!!!!!!!

About a month after the applications were lodged the Department sent out a letter stating that it considered the visa applications were invalid and would not be considered.

What was the justification?

That under Regulation 2.12JA(3) (ever hear  of it?) the visa application charges were taken not to have been received by the Department until the BPAY payment was "electronically matched" with the application.

And unfortunately for the clients, the visa application charges that they thought they had paid through BPAY when they continued to hold substantive visas didn't get matched with the applications until their substantive visas had expired.

The Department took the view that under Regulation 2.12JA(3), the applications were "set to" - in other words, considered not to have been made - until the date that the visa application charges were electronically matched with the applications, not the date when they were actually "lodged", electronically transmitted to the Department over the Internet.

We challenged this "interpretation" of Regulation 2.12JA(3) by means of a judicial review application, but guess what: at least one judge has agreed that the Department's interpretation is correct!!!!

It is this judge's view that an application is not "made" until the visa application charge is paid, and the funds representing payment of the charge are actually in the hands of the Department.

The FCC's decision can be found at this link: Cabrera & Ors v Minister for Immigration [2019] FCCA 1540 (3 July 2019)

It is really really important to note that under Regulation 2.12JA(2), the exact same situation pertains to payments by credit card: under this regulation, the visa application charges that are paid by credit card are "taken not to have been received until the payment has been confirmed by the issuer of the credit card".

Again that means that payment may not be taken to be received on the same day that payment of the visa application charge is authorised to be made, but rather, on a later day!!! 

So the same thing can happen with payment by credit card as can happen with payment by BPAY: the chaarge may be taken not to have been received until the funds representing payment are actually in the hands of the Department, and as a consequence a visa application may be found to be invalid by the Department.

This is, to say the least, a surprising, amazing and astonishing situation, one where a visa applicant may think she/he has "done everything right" and applied for the next visa and paid the visa application charge before the existing substantive visa has expired.

But lo and behold, it can indeed turn out to be the case that the Department will consider the visa application to be invalid if the Department receives payment of the visa application charge after the expiration of the prior visa, and if it is a criterion for the next visa under Schedule 1 that the applicant be the holder of a substantive visa of some kind.

We are in the process of challenging the decision of the FCC in the Federal Court (submissions were completed on 10 February and the Court's decision has been "reserved") so stay tuned for the outcome.

But for now: forewarned is forearmed! If you put in a last minute application and the funds for payment of the visa application charges, either by BPAY or by credit card, are not considered to have been received until a later day, then your client might wind up in the position of having their application to be invalid.

It's all enough to make you want to tear your hair out, isn't it!

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