1515503 (Migration)

[2016] AATA 3471

1515503 (Migration) [2016] AATA 3471 (9 March 2016)

DECISION RECORD

DIVISION:Migration and Refugee Division

APPLICANT:  Miss MIN JIN KIM

CASE NUMBER:  1515503

DIBP REFERENCE(S):  BCC2015/2179293

MEMBER:Alexis Wallace

DATE:9 March 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 09 March 2016 at 11:59am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration, dated 23 October 2015, to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 13 November 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) 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 13 November 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.

4. The application in the present case is invalid on two counts: because the prescribed fee was not paid and because an incorrect form was used.  On 13 November 2015, the applicant submitted a form eR1 electronically in an attempt to seek review of a decision to refuse a student visa application.  That form pertains to applications for review of decisions in relation to protection visas.  Officers of the Tribunal attempted to contact the applicant by telephone and written notice but no response was received.  In particular, on 13 January 2016, a letter was sent to the applicant by email, inviting her to comment on the validity of the application for review given that she had not paid an application fee or submitted the correct application form within time.  To date, the Tribunal has not received any submissions or other response in relation to this invitation or its other attempts to contact the applicant.        

5. 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.

   DECISION

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

   Alexis Wallace
   Member