1516922 (Migration)

[2016] AATA 3404

1516922 (Migration) [2016] AATA 3404 (19 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BINH QUOC TRAN

CASE NUMBER:  1516922

DIBP REFERENCE(S):  BCC2015/3347767

MEMBER:Jennifer Ciantar

DATE:19 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 February 2016 at 9:56am

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 8 December 2015, to refuse to grant a Skilled Nominated (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 8 December 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 29 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.

4. The Tribunal wrote to the applicant on 24 December 2015 and asked the applicant to pay the required fee within the prescribed period. The letter referred to numerous messages left on the applicant’s mobile phone by the Tribunal. On 25 December 2015 the applicant wrote to the Tribunal and stated that he cannot afford to pay and he wants to withdraw the application for review. On 12 January 2016 the Tribunal sent the applicant an invitation to comment on the validity of the application for review, which acknowledged that the applicant wanted to withdraw the application but advised that withdrawal is only possible when a valid application for review has been lodged. The applicant has not responded to the invitation.

5. The prescribed fee has not been paid and no determination has been made 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.

   Jennifer Ciantar
   Member