2107862 (Migration)

[2021] AATA 3417

2107862 (Migration) [2021] AATA 3417 (2 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107862

MEMBER:Tamara Hamilton-Noy

DATE:2 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 August 2021 at 9:31am

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – application fee had not been paid – no determination has been made that the fee should be reduced – invalid application – no jurisdiction

LEGISLATION

Migration Act 1958, s 347

Migration Regulations 1994, 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 501K of the Migration Act 1958 and replaced with generic information.

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 17 June 2021, to refuse to grant a Bridging E (Class WE) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 17 June 2021. 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 8 July 2021. 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 21 June 2021, an officer of the Tribunal wrote to the applicant confirming that an application for review had been received and stating that one the requirements for a valid application for review is that the application fee is paid before the prescribed period for making a valid application has ended.  The Tribunal’s correspondence noted that the application fee had not been paid and that the prescribed period would end on 8 July 2021. 

5. On 24 June 2021, an officer of the Tribunal sent a courtesy email to follow up the correspondence that had been sent to the applicant on 21 June 2021.

6. On 9 July 2021, an officer of the Tribunal wrote to the applicant stating that it appeared his application was not a valid application as the application fee had not been paid and the prescribed time limit to pay the Tribunal fee had expired.  The applicant was invited to comment on the validity of his application by 23 July 2021.

7. On 29 July 2021, the applicant provided to the Tribunal a ‘Request for Fee Reduction’ form; a letter from [a hospital] stating that the applicant has been diagnosed with [medical conditions]; confirmation of a medical appointment for 1 June 2021; tax invoice for admission to [a hospital] between 6 January 2021 and 8 January 2021; and written submissions stating that he had had an accident [and] had had surgery and that he needs some time to recover from his surgery.  On the same date the applicant sent to the Tribunal a further Application for Review form.

8. The Tribunal is satisfied that 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

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

   Tamara Hamilton-Noy
   Member