1910374 (Migration)

[2019] AATA 4177

1910374 (Migration) [2019] AATA 4177 (5 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910374

MEMBER:Linda Symons

DATE:5 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 June 2019 at 12:11pm

CATCHWORDS
MIGRATION – cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 202 (Global Special Humanitarian) – prescribed fee – prescribe period for lodgement of application – one day outside the prescribed period – reasons for the delay – no discretion – no jurisdiction

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

CASES
Braganza v MIMA (2001) 109 FCR 364
Kirk v MIMA (1998) 87 FCR 99

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 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 18 April 2019, to cancel the applicant’s Refugee and Humanitarian (Class XB) visa under the Migration Act 1958 (the Act).

2. The application for review form was lodged with the Tribunal on 3 May 2019. 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.

4. The Tribunal has considered whether the applicant was properly notified of the decision of the Department of Home Affairs (the Department) made on 18 April 2019 to cancel his Refugee and Humanitarian (Class XB) visa. The records of the Department indicate that he wrote to the Department by email on 27 February 2019 indicating that he would like to receive any correspondence from the Department electronically to his email address [Email Address 1]. The email was sent from a different email address being [Email Address 2]. On 29 March 2019, the applicant wrote to the Department by email from email address [Email Address 2].

5. The records of the Department indicate that on 18 April 2019 at 9.53am the delegate notified the applicant of the decision of the Department to cancel his Refugee and Humanitarian (Class XB) visa by email to his email address [Email Address 1] as requested. A courtesy copy of the notification was also sent to him by email on 18 April 2019 at 9.53am to his email address [Email Address 2]. The Tribunal is satisfied that he has been properly notified of the decision of the Department to cancel his Refugee and Humanitarian (Class XB) visa on 18 April 2019 and finds accordingly.

6. Therefore, the prescribed period in this case ended on 2 May 2019. 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. On 25 April 2019, the applicant lodged an incorrect Form R1 with the Tribunal with no payment of the prescribed fee. On 30 April 2019, the Tribunal contacted him by email and requested that he lodge the correct application Form M1 together with the prescribed fee. On 3 May 2019, the Tribunal received his completed application Form M1, a fee reduction request and payment authorisation. This was one day outside the prescribed period which ended on 2 May 2019.

7. On 13 May 2019, the Tribunal wrote to the applicant inviting him to comment on the validity of his application for review in writing by 28 May 2019. This letter was sent to him by email on 13 May 2019. On 28 May 2019, the Tribunal received a response from him in which he stated that the delay in lodging his application for review was caused by three factors. Firstly, he was unable to pay the prescribed fee and approached a friend, [Mr A], who is residing in [Country 1]. Secondly, at the time of his request for funds [Mr A] was in [Country 2] and [Country 3] and by the time he returned to [Country 1] the deadline was upon him.

8. Thirdly, [Mr A] transferred the funds to his bank account on 2 May 2019 but because of the time difference between [Country 1] and Australia and inter-bank transmission delays he was unable to send the documents to the Tribunal until 3 May 2019. He requested that the Tribunal exercise its discretion and make a positive decision in relation to the validity of his application for review.

9. The Tribunal received an email from [Ms B] from [Organisation 1] on 28 May 2019 attaching a number of documents to support the applicant’s application for review before the Tribunal. The Tribunal also received an email from [Mr A] on 31 May 2019 confirming the reasons for the delay in transmitting the funds. 

10. Whilst the Tribunal is sympathetic for the situation the applicant finds himself in, it unfortunately does not have any discretion to extend the time for the lodging of an application for review and a fee reduction request.

11. As the completed application Form M1, fee reduction request and payment authorisation were not received by the Tribunal until 3 May 2019, they were not given to the Tribunal within the prescribed period.

12. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Linda Symons
    Member