Immigration Lawyer Insights - Beware of “system errors” which may invalidate your visa application or application for review
Are you lodging a visa application with the Department of Home Affairs or an application for review with the Administrative Review Tribunal (ART)?
Have you checked the requirements you need to meet in order for your application to be made validly?
When it comes to submitting a visa application with the Department of Home Affairs or an application for review with the ART, you must ensure that you are lodging a valid application. This is especially essential where there is a deadline for the lodgement of your application and limited time for a “redo” or for you to remedy any issues, e.g.:
where you need to lodge a valid visa application before the expiry of your current visa which expires soon; or
where your visa application has been refused and you need to lodge an application for review with the ART within a specified timeframe.
Often, one crucial requirement to lodging a valid application is ensuring that the required application fee has been paid correctly. Even where you have entered credit card details or initiated payment of the application charge through BPAY, system delays or human error, like the ones highlighted in the cases of Cabrera & Ors v Minister for Immigration [2019] FCCA 1540 (3 July 2019) and Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 54 (14 February 2025) can result in the invalidation of your application.
If your application for a visa is found to be invalid, you will not be entitled to the grant of a bridging visa to remain in Australia.
“System Errors” In Your Application
With the Department of Home Affairs and Administrative Review Tribunal’s (ART) increasing reliance on internet systems for the lodgement and processing of visa applications and applications for review, system delays, errors and other technical issues are not entirely uncommon, and may affect your ability to lodge a valid application.
While the Department of Home Affairs or ART’s internet systems are designed to process applications efficiently and ensure that as many validity requirements are met as possible at the time of lodgement, (e.g. through requiring the payment of the right visa application charge before lodgement based on the visa you are applying for), the systems they have in place are not infallible.
Even where you have completed the right online form and entered your credit card details for payment of the right visa application charge determined through the Department’s ImmiAccount system, a system delay or error could cause the fee payment to fail or not be properly processed. In these cases, you may not receive a confirmation receipt or, worse still, your application may be found to be invalid.
Case Study 1: Cabrera & Ors v Minister for Immigration
In the case of Cabrera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 129 decided on 17 February 2020, Mr Alfonso Enrique Castillo Cabrera and his family lodged an application for Employer Nomination Scheme (Subclass 186) visas on 24 June 2017 and chose to pay the relevant visa application charges through BPAY, just 1 day before their Subclass 457 visas were to expire on 25 June 2017. As payment of the visa application charges was not received by the Department of Home Affairs until 26 June 2017 (i.e. after the expiry of their visas which they were required to hold at the time of application to lodge a valid visa application), the Department found that their visa application was invalid.
The applicants lodged an application for judicial review with the Federal Circuit Court (as the Federal Circuit and Family Court of Australia was then known), and the primary judge in Cabrera & Ors v Minister for Immigration [2019] FCCA 1540 agreed that as payment of the visa application charges had not been “matched” until 26 June 2017, their application could only be taken to have lodged on 26 June 2017 (c.f. 24 June 2017 when they first initiated payment of the visa application charges by BPAY).
The applicants later appealed the primary judge’s decision to the Federal Court of Australia. Unfortunately, the Federal Court of Australia ultimately ruled against them, stating that despite the applicants having taken reasonable steps to pay the fee on 24 June 2017, the effect of Regulation 2.12JA(3) of the Migration Regulations 1994 (Cth) is that a visa application charge paid by funds transfer (i.e. BPAY) “is not taken to have been received until the payment is electronically matched to the applicant’s Internet application form”. Since there was no evidence that Mr Cabrera and his family’s BPAY payment was electronically matched to their visa application on or before their Subclass 457 visas expired, their Subclass 186 visa application was taken to be lodged on 26 June 2017 (after their Subclass 457 visas expired) and was ultimately invalid.
Case Study 2: Kaur v Minister for Immigration and Multicultural Affairs
In the case of Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 54 decided on 14 February 2025, Ms Jaswinder Kaur lodged an application for a Temporary Skill Shortage (Subclass 482) visa on 11 October 2021, which was refused by the Department of Home Affairs on 14 February 2022. Ms Kaur subsequently applied to the Administrative Appeals Tribunal (AAT) (which was replaced by the Administrative Review Tribunal (ART) on 14 October 2024), apparently without payment of the review application fee. When the AAT wrote to Ms Kaur on 25 March 2022 inviting her to comment on the validity of her application, noting that the application fee had not been paid, Ms Kaur’s migration agent responded on 5 April 2022 stating that a system error must have occurred, that an application could not be lodged without payment, and requesting direction on how Ms Kaur could immediately pay the application fee.
Unfortunately, the AAT found that Ms Kaur had lodged an invalid application for review and that the Tribunal did not have jurisdiction to consider Mr Kaur’s application. It eventually transpired that payment had actually not been requested at the time the application for review was lodged, because Ms Kaur’s migration agent had lodged the wrong form with the AAT, which was not identified by the AAT until the following day (rather than because of any technical “glitch” in the AAT’s system).
Ms Kaur later applied for judicial review to the Federal Circuit and Family Court of Australia, and she was actually ultimately successful at Court on a different point of law - that based on the specific wording of her Notification of Refusal, the Department of Home Affairs had not properly notified her about the time she had to lodge an application for review. That is, the Department’s failure to properly notify Ms Kaur about the time limits was found by the Court to be a legal error, and the Minister thereafter conceded that Ms Kaur’s application should be remitted to the Administrative Review Tribunal (ART) for determination, subject of course to Ms Kaur attending to payment of the review application fee. On the other hand, the Court’s decision makes it clear that while the Court had sympathy for Ms Kaur’s predicament, the Court agreed that the Tribunal was right to have found that they had no jurisdiction to consider her original application for review, plainly because her failure to pay the right application fee at the time of lodgement invalidated her application for review.
Why It Is Important to Monitor Payment of the Application Fee
To lodge a valid visa application or application for review, the Department of Home Affairs (for visa applications) or the ART (for review applications) requires the payment of a specific application fee, sometimes at a specific time. Without the payment of the correct application fee being made at the right time, your application may be deemed incomplete, and therefore invalid, regardless of its merits and whether you meet all other requirements for the visa.
To ensure that payment of the visa application charge of review application fee has actually gone through to the Department of Home Affairs or Administrative Review Tribunal (ART), you should actively monitor the payment process after you submit your application. This is because it is important to check that your application is not delayed or invalidated due to technical issues, and this is how you can confirm that your application fee has been processed properly:
After submitting your visa application or review request, always check for an official receipt from the Department of Home Affairs or ART confirming that your application fee has been successfully paid. If you do not receive a receipt, contact the relevant authorities immediately to clarify the situation.
Check your bank account or credit card statement to ensure that the transaction for the application fee has been processed. If you see that the payment has not been deducted or recorded, this could be a sign that the system error occurred during the transaction.
Keep track of your application status on the Department of Home Affairs’ or ART’s portal. If the payment was not processed correctly, your application status may remain e.g. in an “Incomplete” or “Ready to Submit” status in the ImmiAccount, and this may suggest that your application has not been validly lodged.
If you identify or experience problems with paying the application fee, do not wait until the deadline for your application is approaching to contact the Department or ART for further advice. Instead, you should promptly follow up with the Department or the ART to resolve these issues, instead of compromising your ability to lodge a valid application before the deadline. This is because if your application and/or payment only goes through after the expiry of a substantive visa which you must have held at the time of application, your application may be deemed invalid, even if the error was outside your control.
Strict Time Limits for Visa Applications and Reviews
One of the most critical aspects of lodging a valid visa application and/or application for review is ensuring that you abide by any strict time limits that apply, and ensure that you lodge a valid visa application before the deadline.
Visa Applications
Schedule 1 to the Migration Regulations 1994 (Cth) often requires visa holders to hold a specified type of visa before they can lodge a valid application for certain visas in Australia. For instance, you will generally need to hold either a substantive visa, Bridging visa A, Bridging visa B or Bridging visa C to lodge a valid application for an Employer Nomination Scheme (Subclass 186) visa in Australia, such that you cannot validly apply for a Subclass 186 visa when you do not hold these visas (e.g. where you previously held a substantive visa, Bridging visa A, Bridging visa B or Bridging visa C which has now expired).
For instance, in circumstances where your application was lodged while you were still the holder of a substantive visa, but payment did not actually go through until after this substantive visa expired, your visa application may be invalidated.
Applications for Review
When it comes to applications for review lodged with the Administrative Review Tribunal (ART) for merits review of a visa refusal, there are strict deadlines for lodging a review application with the ART. This can range from a few days to a little over a couple of months, depending on the type of application for review you are lodging and whether you are the applicant or sponsor of the visa application in question.
Failing to lodge your application for review within the prescribed timeframe, even due to a system error or human error (e.g. due to choosing the wrong application form or payment only being matched/processed after the deadline) can result in your application being invalid, and you may lose the opportunity to apply or seek merits review altogether. In particular, the Administrative Review Tribunal (ART) does not generally have jurisdiction to consider any applications for review which are lodged out of time.
Conclusion
While system errors are perhaps a rare (but nonetheless possible) feature of the online visa application and application for review process, the consequences of such errors can be significant. It is therefore essential to carefully monitor your application’s payment process, to ensure that all validity requirements are met, and that payment of the requisite application fee is successfully processed and received by the Department of Home Affairs or Administrative Review Tribunal (ART). By checking for receipts, confirming the payment on your bank statement, and promptly monitoring the status of your application post-lodgement, you are giving yourself time and opportunity to resolve any such system delays or errors and ensure that you are ultimately able to lodge a valid application before any deadline which applies.
If you require assistance with lodging a valid visa application or application for review, our experienced immigration lawyers are always here to assist you. Should you wish to consult with us about your immigration matters, please do not hesitate to email us at info@inclusivemigration.com.au, submit an enquiry through our contact form or send us a message on WhatsApp.
