1732363 (Migration)

[2018] AATA 512

1732363 (Migration) [2018] AATA 512 (22 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732363

MEMBER:Margie Bourke

DATE:22 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 January 2018 at 2:03pm

CATCHWORDS

Migration – Cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – Requirement for application fee to be paid within the prescribed period – Fee not paid within the prescribed period – Applicant claimed not to be aware of requirement – Notice of requirement given to applicant within prescribed period

LEGISLATION

Migration Act 1958, s 347(1)
Migration Regulations 1994, rr 4.10, 4.13

CASES
Kirk v MIMA (1998) 87 FCR 99

Braganza v MIMA (2001) 109 FCR 364

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant lodged an application for review of a decision of a delegate of the Minister for Immigration, dated [in] December 2017, to cancel the applicant’s Bridging C (Class WC) visa under the Migration Act 1958 (the Act).

2. The review application form was lodged with the tribunal on 20 December 2017. 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 [date] January 2018. 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 sent a letter to the applicant dated [in] January 2018 addressed to him at his nominated email address inviting him to comment on whether a valid application had been made as no payment of the application fee was received within the prescribed time period. The applicant responded by email dated [in] January 2018, in which he stated he did not pay an application fee as he was advised when he lodged the application for review for the decision to cancel his bridging visa that an application fee was not charged for an application to review in relation to a protection visa.

5. The applicant lodged his application for review on 20 December 2017.  The tribunal advised the applicant by email dated 22 December 2017 that in order for his application to be valid for the review of the bridging visa, the application fee is required to be paid, and payment is required to be received by the specified date.    Payment of the application fee was due on [date] January 2018. 

6. The tribunal has some doubts the applicant was given incorrect advice about the required application fee when the application for review was lodged on 20 December 2017.  However, the tribunal is satisfied the applicant was properly advised of the requirement for the application fee by email on 22 December 2017.

7. The tribunal is satisfied the applicant was properly notified that the application would not be valid unless the application fee was paid. The applicant stated in his email of [date] January 2018 that he was not able to pay the application fee “even in the future”, and was aware the time frame for payment had expired.

8. 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

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

   Margie Bourke
   Member