1513397 (Migration)

[2016] AATA 3005

1513397 (Migration) [2016] AATA 3005 (4 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Mileidy Roque Rojas

VISA APPLICANT:  Ms Sixta Rojas Batista

CASE NUMBER:  1513397

DIBP REFERENCE(S):  bcc2015/2660412

MEMBER:Michelle Grau

DATE: 4 January 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 04 January 2016 at 1:45pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 29 September 2015, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 30 September 2015. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 70 days after the applicant was notified of the decision in accordance with the statutory requirements.

4. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 9 December 2015. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 30 September 2015 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. On 30 September 2015 the review applicant lodged an application for review on the application form for AAT General division form. On 1 and 8 October 2015 a tribunal officer emailed the applicant to inform that the form was not the correct form for a migration division review and that a fee of $1673 was also payable. On 6 and 8 October a tribunal officer left messages for the review applicant to contact the tribunal as the application was not on the correct form.

7. On 8 October 2015 the review applicant responded by email, saying she wanted to continue with the application, was waiting for documents from her mother and she would complete the form and make the payment next week. Nothing was received by the tribunal.

8. On 21 October 2015 a tribunal officer left a telephone message for the review applicant to contact the tribunal.

9. On 15 December 2015 the tribunal wrote to the review applicant informing the application did not appear to be valid as it was not an application made on the correct form within the relevant time limit, being 9 December 2015.  No response was received.

10. The tribunal notes the application was made on a General division form and not made on the correct form, being Form M1 – Application Form Migration (design date 07/15). While the review applicant said she was going to provide the correct form and fee, nothing was received.

11. The prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

12. Further, the Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 30 September 2015. Therefore the prescribed period within which the review application could be made ended on 9 December 2015. As no application on the correct form within the relevant time limit has been received the application for review it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

13. The Tribunal does not have jurisdiction in this matter.

    Michelle Grau
    Member