2213979 (Migration)

[2023] AATA 1371

2213979 (Migration) [2023] AATA 1371 (1 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2213979

MEMBER:David Barker

DATE:1 February 2023

PLACE OF DECISION:  Sydney

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

Statement made on 01 February 2023 at 2:52pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 66, 347

Migration Regulations 1994, r 4.13, Schedule 2

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 Home Affairs, dated 31 August 2022, to cancel the applicant’s Bridging A (Class WA) visa under the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 19 September 2022 on the review application form relevant to the General and other Divisions of the Administrative Appeals Tribunal.

3. The Tribunal notes that the notification of decision letter from the Department of Home affairs (the Department), sent by email on 31 August 2022, should have stated that the person is taken to have received the notification at the end of the day on which the document was transmitted. However, the ‘Review Rights’ section of the notification letter provides timeframes for notification being posted : ‘The prescribed timeframe commences when you are taken to have received this letter and ends at the end of seven (7) working days after the day on which you are taken to have received this letter. As this letter was sent by mail from a place in Australia to an address in Australia, you are taken to have received this letter seven (7) working days after the date of the letter. A working day does not include weekends or public holidays in the place to where this letter was posted.’  

4. There is no indication that the review applicant was re-notified of the Bridging visa cancellation decision and the Tribunal considers that the requirements for valid notification are not complied with in the notification of decision sent to the applicant on 31 August 2022. This is because s 66(2)(d)(ii) of the Act is not satisfied as the notification sent states the incorrect time period to lodge the review application. As the notification has been assessed as invalid, the prescribed period for seeking review has not commenced and the review application is therefore not out of time. However, for the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the current review application has not been made in accordance with the relevant legislation.

5. Pursuant to s 347(1) of the Act and reg 4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal accompanied by the prescribed fee unless a determination has been made under reg 4.13(4) that the fee should be reduced on the basis of financial hardship.

6. On 16 December  2022, the Tribunal sent a natural justice letter to the applicant regarding payment of the required fee and invited the applicant’s response by 3 January 2023.  The letter noted that the Tribunal wrote to the applicant  on 25 October 2022 and 21 November 2022, requesting an amended application form and payment of the application fee.  On 4 January 2023 the Tribunal received an email from the review applicant, which  it has considered.  The email stated:

   Tribunal has made decision to dismissed my application under section 426A(1A)(b) of Migration Act 1958. However in notification from Tribunal allow me to reinstatement in writing under section 426(B). Adminstrative Appeal Tribunal. It was happened because the expiry date at MyVevo application is 35 days and meanwhile in notification of refusal application is 28 calender days. This two expired date make we confused and misleading about our last date to appeal in Administrative Appeal Tribunal. Cause of multiple expired date, I did not know my appeal application to be out of time.I admit and allow me to say apologies that date was late to responed to appeal at I would like to make a explanation about my protection visa, have submitted and this my argument to defend myself. Because of this I feel threatened and nobody can protect myself from this threat. I believing necessary and foreseeable consequence to me being removed from Australia to a receiving country, being Malaysia, that there is a real risk to me and i will suffer significant harm. Remits the matter for reconsideration and directs that there The Tribunal grounds for believing that as a necessary and foreseeable consequence to me in Australia to the receiving my country, there is a real risk that me will suffer significant harm.

   With this i hope Tribunal can reconsider my extention time and review of my application.

7. The Tribunal notes that s 426A of the Act provides for dismissal powers available to the Tribunal if a review applicant fails to appear before the Tribunal at a scheduled hearing. That provision is not relevant to the current matter, which is focussed on an initial question of whether the Tribunal has the power to undertake the requested review. Other issues in the applicant’s response appear to pertain to the substantive reasons he is seeking protection and do dot address the fee payment requirements.

8. On the basis of the information available to it the Tribunal finds that 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  current 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.

   David Barker
   Member