Federal Court (Full Court). Did representative authorise payment of AAT application fee whatever the fee would be? Can most of the fee be paid by the statutory deadline and the difference afterwards? Does the fee accompany the application if it is paid after the application is lodged, so long as paid before the deadline?
On the last day for making a valid application to the Tribunal for review of a decision of a delegate to cancel a visa, the Appellant's representative lodged an application form with the Tribunal electronically, indicating that payment was to be made via credit card. However, the representative wrote $1,673 as the amount to be paid for the application fee, instead of the amount of $1,731 required by legislation. The difference was only paid after the deadline for making the Tribunal application.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that, "by identifying “credit card” as the way he would pay the “application fee” (and then filling in the necessary card details and signing), the representative authorised payment from his credit card of whatever amount that “application fee” might be"?
Question 2: Is compliance with the requirements in s 347(1) of the Migration Act 1958 (Cth), as well as the other aspects of s 347, necessary in order to trigger the duty of the Tribunal to conduct a review?
Question 3: Does the context of s 347(1) require it to be given a construction in which the words of the chapeau ("An application for review of a Part 5-reviewable decision must") have different effect in relation to para (c) from that which they have in relation to para (b)?
Question 4: Can it be said that "whether an application for review is “accompanied by the prescribed fee” within the meaning of s 347(1)(c) of the Migration Act is a question of fact and degree and, in the present matter, payment of 96.6% of the fee within the prescribed time and the balance within a reasonable time after being asked to do so [and after the prescribed time] was sufficient to satisfy the meaning of “accompanied by”"?
Question 5: Do the words "accompanied by" in s 347(1)(c) have some flexibility in that they do not require the application form and the prescribed fee to arrive at the Tribunal’s offices in the same envelope, attached to the same email or otherwise at the same moment, so long as ss 347(1)(b)-(c) are complied with before the expiry of the "prescribed period"?
Question 6: Is a construction that is at odds with the intention reflected in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) to be avoided if possible?
Question 7: If the answer to Question 5 is 'yes', should an exception be recognised according to which s 347(1) does not require the prescribed fee to have been paid within the prescribed period if an application for partial waiver of the fee is made under r 4.13 of the Migration Regulations 1994 (Cth) for the Registrar of the Tribunal to reduce the applicable fee by 50%?
Question 8: If the Applicant had argued that the application form in which the erroneous amount for the payable fee was recorded should be, or should be regarded as, rectified to correct the error, and if the facts of the case as might then have been presented and examined supported such rectification, can it be said that "it may have had the effect that payment was within time because rectification acts retrospectively; it relates back to the time at which the document was executed"?
The FCAFC answered those questions as follows: