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

1. 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).

2. 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.

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 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.

4. 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.

5. 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.

6. 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 cause, or be likely to cause her severe financial hardship, she might consider completing a M11 Request for Fee Reduction Form and pay 50% of the application fee, being $1687. The applicant was provided with a Payment form, an M11 Request for Fee Reduction form and an M1 Application Form. The letter was despatched by email to the address provided by the applicant in her application.

7. On 20 August 2024, a Tribunal officer wrote to the applicant advising her that, as the application fee had not been paid, her application was not a valid application and inviting her to comment on the validity of the application for review by 3 September 2024. The letter was despatched by email to the address provided by the applicant in her application.

8. On 20 August 2024, the Tribunal received a response from the applicant as follows:

   I have applied initially for visitor sponsor visa 600 for my elder brother who lives in Manchester UK with his daughters. IMMI rejected the application saying they can’t even proceed further based on the information which makes me very down feeling what have my brother done ? I gave a statutory declaration for his stay in Australia for few months with my family as a visitor. My parents came to Australia 6 times. Stayed here without any issues.

   Now I applied for appeal of the previous rejected application and you asked me to pay more than $2K for that? Whereas I would ask to refund my application fee for subclass 600!! There is no way to pay that much incredibly high fees for that tribunal. This is a simple application I made for appeal of the rejection, I can’t pay further for no positive outcome.

9. 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

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

    Mara Moustafine
    Member