Australian Immigration Daily News

We have now reached a full blown, break the glass, emergency when it comes to last minute visa applications!!

Late yesterday, we received judgment in Cabrera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 129 (17 February 2020).

Essentially, this decision affirms the decision of the Federal Circuit Court in this same case, discussed in the article I posted late yesterday afternoon:

Specifically, the effect of this decision is that a visa application will not be considered to be validly made until the funds representing payment for visa application charges are actually received by the Department.

Under Regulation 2.12JA, that means that if a visa application charge is paid by credit card, the visa application will not be considered to be validly made until payment has been "confirmed" by the issuer of the credit card; in the case of BPAY payments, the payment will be taken not to have been received until it is "electronically matched" with the application.

What this means effectively is that there can be a delay between the time a visa application is submitted electronically over the Internet through ImmiAccount, and the time that the payment is received.

For example, in Cabrera, the payment of the visa application charge was attempted by BPAY on a Saturday, but the electronic matching did not occur until the following Monday.

It is the practical effect of this delay that is so important: in Cabrera,  the applicants substantive visas expired before the BPAY payment of the visa application charges was electronically matched, and they were therefore unable to satisfy Schedule 1 requirements that they continue to hold valid substantive visas.

The crucially important practice pointer is that you cannot assume that just because you have electronically lodged an application, that the application will be considered to have been validly made.

Under the Federal Court's holding in Cabrera, the subsequent visa application will not be taken to have been made until the funds representing payment of the visa application charges are taken to have been received by the Department under Regulation 2.12JA.

Again, this practice pointer is absolutely crucial: if you lodge a new visa application close in time to the expiration of an existing visa, payment may not be taken to be received by the Department before the previous visa has expired.

This means that as a matter of abundant caution you should get the new visa application submitted with authorisation to pay the visa application charges several days before the existing visa expires.

If you don't do this, you may well discover to your regret that the Department is treating the new visa application as one that is invalid, and that the Department will refuse to consider it.

You absolutely do not want to find yourself in this situation!!!!!!!!! 

And neither do your clients!!!!!!!!!!!!!!!

This development illustrates why it is important for RMAs to stay informed of what's happening in the courts, even if you are never involved in an application for judicial review. 

The interpretations that come out of the courts affect day-to-day immigration practice.

That's another reason why I encourage you to check out The Migration Messenger!