2401833 (Migration) - [2024] AATA 3874

2401833 (Migration) [2024] AATA 3874 (14 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2401833
MEMBER:Member Nathan Goetz
DATE:14 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal does not have jurisdiction to review the decision dated 18 January 2024 refusing to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 14 June 2024 at 4:57pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – applicable fee not paid – correct application form not used – no jurisdiction
LEGISLATION
Migration Act 1958, ss 65, 347
Migration Regulations 1994, Schedule 2, cl 600.211; 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

This is an application for merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) visa.
BACKGROUND
The visa applicant is a male citizen of the Philippines who was born in that country [in] March [specified year] and presently located there.
On 30 December 2023 the visa applicant applied for the visa. In the visa application form, the visa applicant did not authorise another person to receive correspondence from the Department on his behalf. The visa applicant provided the email address [specified] to receive electronic communication from the Department.
On 18 January 2024 the delegate refused to grant the visa applicant the visa on the basis that he did not satisfy cl 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The letter notifying the visa applicant that the visa was refused is dated 18 January 2024 and indicates that it was sent by email to the email address nominated in the visa application form. The visa applicant was provided with the following advice concerning his right to seek a review of the decision:
“Review rights
The Department cannot consider your visa application any further. However, if you have a parent, spouse or de facto partner, child, brother or sister who is an Australian citizen or
Australian permanent resident, that person is entitled to apply for a merits review of this decision to the Administrative Appeals Tribunal (AAT).
An application for merits review of this decision must be given to the AAT within 70 calendar days after the day on which you are taken to have received this letter.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
The abovementioned time in which an application may be made to the AAT for merits review of this decision is prescribed by law and cannot be extended.”
The letter also advised the visa applicant of the various methods by which a review could be lodged with the Tribunal, and provided the contact points for each method of lodgement.
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 prescribed period ended on 28 March 2024. 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.
On 30 January 2024 the review applicant applied to the Tribunal for review of the decision. The review application form was not accompanied by payment of the prescribed fee or a request for fee reduction.
On 21 May 2024 the Tribunal wrote to the review applicant and invited her to comment on the validity of the review, given that the prescribed period of time had expired, and no payment had been made, nor had a request for fee reduction been made and granted.
On 23 May 2024 the review applicant wrote to the Tribunal and did not comment on the validity of the review, other than to indicate that she had received advice that it would be quicker to apply for another visitor visa with the Department and she was not interested in continuing with the review.
CONSIDERATION AND CONCLUSION
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.
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
The Tribunal does not have jurisdiction to review the decision dated 18 January 2024 refusing to grant the visa applicant a Visitor (Class FA) visa.
Nathan Goetz

Member

Details

AGLC: 2401833 (Migration) [2024] AATA 3874
Case: [2024] AATA 3874
Decision Date: 14 June 2024

CaseChat Overview and Summary

This matter concerned an application for merits review of a decision by a delegate of the Minister to refuse a Visitor (Class FA) visa to a citizen of the Philippines. The applicant had provided an email address for correspondence and was notified of the refusal on 18 January 2024. The notification advised of review rights to the Administrative Appeals Tribunal (AAT) within 70 calendar days, stating that the applicant was taken to have received the notification by email at the end of the day it was transmitted.

The Administrative Appeals Tribunal was required to determine whether it had jurisdiction to review the delegate's decision. This involved considering whether the application for review was made in accordance with the relevant legislative requirements, specifically concerning the payment of the prescribed fee and the lodgement of the application within the statutory timeframe. The Tribunal also had to consider whether any request for a fee reduction had been made or determined.

Member Nathan Goetz found that the Tribunal lacked jurisdiction because the application for review was not valid. The applicant had lodged the review application on 30 January 2024, within the prescribed period, but it was not accompanied by payment of the prescribed fee, nor was there a request for a fee reduction based on financial hardship. In the absence of either the fee payment or a determination for reduction, the application was deemed invalid.

Consequently, the Tribunal ordered that it did not have jurisdiction to review the decision dated 18 January 2024 refusing to grant the visa applicant a Visitor (Class FA) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the visa applicant a Visitor (Class FA) visa.BACKGROUND The visa applicant is a male citizen of the Philippines who was born in that country [in] March [specified year] and presently located there. On 30 December 2023 the visa applicant applied for the visa. In the visa application form, the visa applicant did not authorise another person to receive correspondence from the Department on his behalf. The visa applicant provided the email address [specified] to receive electronic communication from the Department. On 18 January 2024 the delegate refused to grant the visa applicant the visa on the basis that he did not satisfy cl 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The letter notifying the visa applicant that the visa was refused is dated 18 January 2024 and indicates that it was sent by email to the email address nominated in the visa application form. The visa applicant was provided with the following advice concerning his right to seek a review of the decision:“Review rightsThe Department cannot consider your visa application any further. However, if you have a parent, spouse or de facto partner, child, brother or sister who is an Australian citizen orAustralian permanent resident, that person is entitled to apply for a merits review of this decision to the Administrative Appeals Tribunal (AAT).An application for merits review of this decision must be given to the AAT within 70 calendar days after the day on which you are taken to have received this letter.As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.The abovementioned time in which an application may be made to the AAT for merits review of this decision is prescribed by law and cannot be extended.” The letter also advised the visa applicant of the various methods by which a review could be lodged with the Tribunal, and provided the contact points for each method of lodgement. 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 prescribed period ended on 28 March 2024. 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. On 30 January 2024 the review applicant applied to the Tribunal for review of the decision. The review application form was not accompanied by payment of the prescribed fee or a request for fee reduction.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 The Tribunal does not have jurisdiction to review the decision dated 18 January 2024 refusing to grant the visa applicant a Visitor (Class FA) visa.Nathan GoetzMember

Ratio Decidendi

Legal Principle Established

On 23 May 2024 the review applicant wrote to the Tribunal and did not comment on the validity of the review, other than to indicate that she had received advice that it would be quicker to apply for another visitor visa with the Department and she was not interested in continuing with the review.CONSIDERATION AND CONCLUSION 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. 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 The Tribunal does not have jurisdiction to review the decision dated 18 January 2024 refusing to grant the visa applicant a Visitor (Class FA) visa.Nathan GoetzMember