Ahmed (Migration) - [2024] AATA 4052

Ahmed (Migration) [2024] AATA 4052 (6 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Dr Salina Ahmed
VISA APPLICANTS:  Mr Sultan Ahmed
Mrs Yeasmin Akter
CASE NUMBER:  2425653
HOME AFFAIRS REFERENCE(S):          BCC2024/2603053
MEMBER:Mara Moustafine
DATE:6 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 06 October 2024 at 6:49pm
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, rr 4.10, 4.13
CASES
Braganza v MIMA (2001) 109 FCR 364
Kirk v MIMA (1998) 87 FCR 99
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Home Affairs, dated 24 May 2024, to refuse to grant Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application form was lodged with the Tribunal on 30 July 2024. 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.
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 . 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.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 24 May 2024 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal formed the preliminary view that it did not have jurisdiction because the application was lodged on 30 July 2024 without the required application fee being paid.
An officer of the Tribunal wrote to the applicant on 31 July 2024 advising her that one of the requirements for a valid application for review is that the application fee is paid before the prescribed period for making a valid application ended, in her case on 2 August 2024. The applicant was advised that as her application was lodged on the incorrect form, the required application fee of $3,496 has not been paid. The applicant was advised that should payment of the full fee…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahmed (Migration)

Details

AGLC: Ahmed (Migration) [2024] AATA 4052
Case: [2024] AATA 4052
Decision Date: 6 October 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Migration Review Tribunal. The applicant, Mr. Ahmed, sought to challenge a decision relating to a Visitor (Class FA) visa, Subclass 600.

The primary legal issue before the Tribunal was whether it had jurisdiction to hear Mr. Ahmed's application for review. This question turned on whether Mr. Ahmed had complied with the procedural requirements for lodging a valid application for review, specifically concerning the payment of the prescribed fee and the use of the correct application form.

The Tribunal found that the prescribed fee for the application for review had not been paid, nor had any request been made for a reduction of that fee. In the absence of these essential requirements being met, the Tribunal concluded that the application for review was not a valid application. Consequently, the Tribunal determined that it lacked jurisdiction to proceed with the substantive merits of Mr. Ahmed's case.

The Tribunal ordered that it did not have jurisdiction in this matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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 in this matter.Mara MoustafineMember

Ratio Decidendi

Legal Principle Established

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