Application Fee For A Visa

Introduction

Check List Using The Regulations As A Template eg - Spouse Visa

Get Enough Sleep

Visa Application And Associated Costs

Preserving Records

Record Keeping And Management - How Long Do Documents Have To Be Kept?

Initial Requirements Regarding Accepting A Retainer

Failure Of Proper File Management Can Lead To Suspension As A Migration Agent

Interpreters

Confidentiality & Notifying The Client Of Complaint Procedure

Give Your Client A Copy Of Everything

Give Your Client The Bad News Immediately

Take Care While On Holidays

Clients & English

Check Special Requirements For Offshore Visas With The Embassy's Or Consulate's Website

Don't Accept Immigration's Assertion That Decisions Have Been Made Properly

Have No Fear Of Appeals

Never Advise Your Client To Make Life Changing Decisions Prior To The Grant Of A Visa & Trust Your Instincts

Before You Set The Fee With Your Client And Before You File A Visa Application

Oral Instructions

What Can Go Wrong If You Don't Record Your Mail Properly

Positioning And Pathways And Fees (Putting All One's Eggs In One Basket)

Email & Fax Communication & Errors With Credit Cards Emerge As Troubling Issues

Preparing A Client For Merit Review Hearings Or Interviews With DIBP

Accountants And Migration Law

Passport

Berenguel - Sometimes Time Of Application Criteria Can Be Met At Time Of Decision

Bare Faced Liars & The Fraudsters

Everyone's Doing It

Bridging Visas

Visas Remain Current Until Midnight

Immigration Closes At 4pm

Looking After Secondary Visa Holders In A Visa Cancellation Process

Applying As A Secondary Visa Applicant Onshore When The Primary Visa Applicant Is Offshore

Being Illegal

Essential Prerequisites For A Ministerial Discretion Application

Last Lunge Applications

State And Territory Sponsorship

Addresses

Believing The Client

Follow Up

Make Peace With The Tax Office

No Obligation On Immigration To Chase Up Information Or Documents From Migration Agents Or Lawyers Representing A Client

Errors In Visa Applications

Spouse Visas - Unexplained Large Deposits of Money

Managing No. 8503 On Tourist Visas

Medical Consent

Statutory Declarations

Merit Review

Tax Deductibility of Migration Advice

LEGENDcom

Dates On Documents And Names On Documents

Breaking Up Is Hard To Do

Take A Statement

Case Management Software

Work Rights

Student

Check All Past Visa Applications

Revealing Convictions

Visa Holders Being On Their Best Behaviour

Email Communication With Immigration - Delete All Strings

No Without Prejudice Conversations With Immigration

Accounts Managements

What Is A Secondary Visa?

Identify Australian Citizens Who Support An Applicant

Communications

Schedule 1 Criteria

Second Thing To Do On Starting A File - Download The Relevant Part Of The Law

First Thing To Do When Starting Any File - Identify Any 'Rights Destroying' Deadlines

Lodging Paper Applications

Social Media & Smart Phones

References

Disputes About Parentage And Children

Helping People Pass The English Tests

Managing Emails

What Is The Pomodoro Technique?

Immigration Telephones Client

When Is A Visa Application Made In Australia

Apply For A Visa In Australia

No Visa Application Is An Island

The Hammock Principle

Here is one example of what can go wrong. Be ultra careful about filing applications for visas when visa application charges may go up (ie round 30 June each year). S. 46 of the Migration Act states:

(1) Subject to subsections (1A) and (2), an application for a visa is valid if, and only if:

(a) it is for a visa of a class specified in the application; and

(b) it satisfies the criteria and requirements prescribed under this section; and

(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

(c) any fees payable in respect of it under the regulations have been paid;

If the incorrect amount is not tendered with the application it is not a valid application and may be rejected as such. If you are running to a tight time schedule, your client may be severely prejudiced. One method of insuring that the correct amount is paid is to add a credit card authorisation in the covering letter saying, you would do this even if you are paying by cheque :

If we have inadvertently tendered the incorrect amount for any fees and charges due for payment with this application, please charge any additional amounts necessary to the credit card nominated below – etc. If there is any problem with payment of the filing fee in any way then similarly please charge any additional amounts necessary to the credit card nominated below.

Do the same by hand on application forms. If you plan to pay by credit card in a paper application then always supply the numbers of two credit cards. It happens often enough that that either the credit card will not go through because of some glitch with insufficient funds or someone simply gets the number wrong. If an application has to be lodged by a certain date then it is essential that one checks that everyone if OK with the application as lodged (including that the payment has gone through.

Make sure you have an excellent relationship with your bank or financial institution in this sense. Make sure that your bank or financial institution will never dishonour a cheque without giving you the chance to rectify your account. With your credit cards make sure your credit card provider will allow you to go over the spending limit (usually with an overspending charge) or keep tabs on this.

A bounced cheque in payment of a fee in migration can have a disastrous effect. In Kirk v MIMA [1998] 1174 FCA (11 September 1998), the Federal Court found that a bounced cheque meant a MIRO[7] application was invalid. Lehane J concluded:

In Tabet v MIMA (1997) 75 FCR 446 Mansfield J held that the provisions of s 339(1), requiring an application for review to be given to the Secretary within the prescribed period, were mandatory in the sense that strict compliance is necessary in order to engage the duty, under s 340, to review a decision. In reaching that conclusion, his Honour approved and applied earlier decisions of this Court concerning similar statutory provisions. His Honour recognised (as the facts of Tabet themselves demonstrated) that s 339(1), so construed, might operate harshly in particular cases. He concluded, however, (at 455) that he should give effect to “the clear words of the relevant provisions” and the earlier decisions to which he referred. I have no doubt that it is appropriate for me simply to follow his Honour’s decision and adopt his reasons.

Once it is seen that it is essential to give the application to the Secretary within the prescribed period, it must be concluded, in my view, that it is equally essential that the application “be accompanied by the prescribed fee (if any)”. The requirement that the application be “accompanied” by the prescribed fee must mean, at least, that that fee is to be paid before the end of the period within which the application must be “given”: similar words were so construed by the High Court of New Zealand (Fisher J) in Wielgus v Removal Review Authority [1994] 1 NZLR 73. Fisher J held also that the requirement that an appeal be “accompanied by the prescribed fee” meant that, if an appeal were validly to be brought, both the notice of appeal must be lodged and the fee must be paid within the period provided for lodgment of the notice. In the present context, where s 339(1) provides that each step “must” be taken, both (giving effect to the word “accompanied”) within the prescribed period, there is no ground to conclude that one requirement is any less essential than the other in order to invoke the jurisdiction to review.

Lehane J added:

As I have already said, a requirement that an application be accompanied by the prescribed fee must mean, at least, that the fee be paid not later than the period within which the application must be given to the Secretary. It is well established by high authority that when a cheque is given and accepted for the purpose of paying an amount due, the amount due will be treated as paid on the date the cheque is given provided that the cheque is met on presentation; but not otherwise:

“There can be no doubt that the acceptance of a payment by cheque implies, if there be nothing to the contrary, an agreement that it shall be considered as payment, subject to the condition subsequent that if the cheque be dishonoured it shall no longer be so considered: ….”

(Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529 at 535 per Kitto J; see also at 532, 533 per Dixon CJ and at 537 per Menzies J). That principle was restated in the joint judgment of the High Court in National Australia Bank Ltd v KDS Construction Services Pty Ltd (1987) 163 CLR 668 at 676. There is nothing in the context of the Migration Act or the Regulations which excludes that well-established principle which, where a cheque is dishonoured, does not depend for its operation on the reason why a cheque is dishonoured. If the cheque is in fact dishonoured, then the condition fails and payment is taken not to have been made.

The only rescue strategy for a dishonoured cheque is to ask DIBP to re-present the cheque. The difficulty in Kirk was that the solicitor who drew the cheque went bankrupt and the cheque account was closed. Under bankruptcy rules, the trustee in bankruptcy had legal difficulty in making payments to one party in preference to other creditors. The writer recently had a matter with MARA where it was convinced to re-present a cheque that had bounced. But better to be sure and make sure that every cheque drawn will be honoured first up.

Barbara DavidsonNovember 16, 2017

Application Fee For A Visa

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