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

1. 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

2. The visa applicant is a male citizen of the Philippines who was born in that country [in] March [specified year] and presently located there.

3. 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.

4. 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).

5. 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.”

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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

12. 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.

13. 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

14. 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