2214559 (Migration)

[2023] AATA 1573

2214559 (Migration) [2023] AATA 1573 (1 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2214559

MEMBER:Margie Bourke

DATE:1 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 01 February 2023 at 3:13pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – prescribed fee – non-payment of fee – no request for fee reduction – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 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 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 Home Affairs, dated 19 September 2022, to refuse to grant a Bridging E (Class WE) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The review application form was lodged with the Tribunal on 3 October 2022. 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 reg 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 reg 4.10, and 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. The prescribed period is set out in reg 4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the notification was made on 19 September 2022 and the prescribed period of 21 calendar days ended on 10 October 2022. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under reg 4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. The applicant applied for a Bridging E visa on 15 September 2022. The Department notified the applicant of the decision to refuse the application by email on 19 September 2022. The applicant applied online to the Tribunal for review of the Department’s refusal decision on 3 October 2022.

5. On 6 October 2022 the Tribunal sent an email to the applicant advising the applicant had selected in the application for review form that the refusal decision related to a Protection visa, but the applicant had provided details of the refusal decision in relation to the Bridging E visa application. The Tribunal advised the applicant that it had identified the application for review of the Bridging E visa refusal and requested the applicant advise the Tribunal immediately if this was not the case.

6. In the email to the applicant on 6 October 2022 the Tribunal advised the applicant he was required provide payment for the application for review within the prescribed time, and the Tribunal provided details about the amount of the fee, the payment form and method of payment. The Tribunal also provided information to the applicant in relation to applying for fee reduction of the fee for the application for review.

7. The Tribunal did not receive a response to its email to the applicant on 6 October 2022. The Tribunal did not receive payment of the prescribed fee for the application for review.

8. The Tribunal sent a letter by email to the applicant on 6 December 2022 advising the application for review did not appear to be valid because the applicant had not paid the application fee before the expiration of the time for lodging the application for review. The Tribunal invited the applicant to provide comments or responses in relation to whether a valid application had been made by 20 December 2022.

9. The Tribunal did not receive any response from the applicant to its letter sent by email on 6 December 2022.

10. 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

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

    Margie Bourke
    Member