1609840 (Migration)

[2016] AATA 4351

1609840 (Migration) [2016] AATA 4351 (9 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Siyun Hou
Mr Weihua Li

CASE NUMBER:  1609840

DIBP REFERENCE(S):  BCC2016/1065018 EGOB2OA86Y

MEMBER:Katie Malyon

DATE:9 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 09 September 2016 at 12:43pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision by a delegate of the Minister for Immigration, dated 30 June 2016, to refuse to grant the applicants Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. A review application form was lodged with the Tribunal on 30 June 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 (the Migration Regulations), this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) of the Act and r.4.10 of the Regulations, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) of the Regulations 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 21 July 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) of the Regulations, within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. The Tribunal attempted to contact the applicants by phone regarding lodgement of the incorrect Form and absence of the fee for lodgement.  A Registry Officer spoke with the secondary applicant Mr Weihua Li on 4 July 2016 and requested payment as well as lodgement of the correct Form M1.  The Tribunal contacted the primary applicant Miss Siyun Hou by email dispatched on 21 July 2016 at 14:54 informing her that payment of the review application fee of $1,673 had not been received and advising that if the fee was not paid within the timeframe specified for lodging a valid application for review (as specified in the delegate’s letter) the Tribunal may not be able to review her case. 

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.

   Katie Malyon

   
   Member