1603658 (Migration)

[2016] AATA 3915

1603658 (Migration) [2016] AATA 3915 (19 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Asfiya Zainab
Mr Jaffar Ali Syed
Miss Afrah Jaffar

CASE NUMBER:  1603658

DIBP REFERENCE(S):  BCC2015/1685609

MEMBER:Mary Cameron

DATE:19 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 19 May 2016 at 4:25pm

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 25 February 2016, to refuse to grant Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 17 March 2016. 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 17 March 2016. 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. On 30 March 2016 the Tribunal wrote to the applicants by email expressing the view that the applications were not valid applications as the application fee had not been paid. The letter noted that that the application for review had been received by facsimile on 17 March 2016 at 7.00pm and an attempt had been made to process the payment for the application using the credit card details provided the next business day, however the credit card was declined. No further attempts were made to process the payment on the basis that 17 March 2016 was the last day to lodge a valid application. The letter invited the applicants’ comments on the validity of the application. There was no response.

5. The Tribunal subsequently received advice that the applicants’ nominated representative and authorised recipient’s registration with the Office of the Migration Agents Registration Authority had been cancelled on 22 April 2016. The Tribunal wrote to the applicants on 28 April 2016 advising them of this, and explaining that the Tribunal would continue to send all correspondence to their authorised recipient and would also send copies of all correspondence directly to the applicants unless the applicants advised the Tribunal otherwise in writing. The letter attached copies of Tribunal forms MR6 – Change of Contact Details – MR Division and MR5 Appointments of Representative/Appointment of Authorised Recipient – MR Division.

6. Also on 28 April 2016 the Tribunal again wrote to the applicants at their postal address (with an email copy of that correspondence also sent to their authorised recipient) reiterating the view that the applications were not valid applications as the application fee had not been paid. The letter included the details that the application for review had been received by facsimile on 17 March 2016 at 7.00pm and an attempt had been made to process the payment for the application using the credit card details provided the next business day, however the credit card was declined. No further attempts were made to process the payment on the basis that 17 March 2016 was the last day to lodge a valid application. The letter again invited the applicants’ comments on the validity of the application. Again there was no response.

7. 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

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

   Mary Cameron
   Member