Alicos (Migration) - [2023] AATA 1548

Alicos (Migration) [2023] AATA 1548 (20 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Allyssa Von Louise Peñalosa Alicos
CASE NUMBER:  2218439
HOME AFFAIRS REFERENCE(S):          BCC2022/5093229
MEMBER:David McCulloch
DATE:20 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 20 March 2023 at 8:45am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – standing for review of decision – Australian citizen or permanent resident – non-payment of prescribed fee – 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
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 14 December 2022, to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application form was lodged with the Tribunal on 14 December 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.
The Tribunal wrote to the applicant on 19 December 2022. The letter indicated that a decision to refuse a subclass 600 Visitor visa is reviewable by the Tribunal if the Visa applicant intends to visit an Australian citizen or permanent resident who is a parent/spouse/de facto partner/child/brother/sister of the Visa applicant. It appears that the applicant intends to visit individual who is not an Australian citizen or permanent resident. On that basis the decision to refuse to grant the visa is not a decision which can be reviewed by the Tribunal.
The letter also indicates that a person who is entitled to apply to the Tribunal in relation to the decision is a parent/spouse/de facto partner/child/brother/sister of the visa applicant who is an Australian citizen or permanent resident and whose particulars were included in the application. The applicant does not fall into this category. It is also noted that the application fee has not been paid. There would appear to be no jurisdiction on these grounds.
The Tribunal makes the following in relation to the requirement to pay a fee for the review. 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 applicant provided a response to the correspondence. The response acknowledges that the person that the applicant intends to visit in Australia is not a permanent residence or Australian citizen. The response suggests that this person is the applicant’s partner. The applicant asks for advice as to who the matter can be directed to. In relation to the fee, it is indicated there was no prompt in making the application to pay a fee. If a fee is required this can be paid.
The applicant has acknowledged that the person that she intended to visit in Australia was not an Australian citizen or permanent resident. Thus there is no jurisdiction for the review on this basis. There is also no jurisdiction on the basis of the review not being having been made by a relevant person who is an Australian citizen or permanent resident. Further, 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.
David McCulloch
Member

Details

AGLC: Alicos (Migration) [2023] AATA 1548
Case: [2023] AATA 1548
Decision Date: 20 March 2023

CaseChat Overview and Summary

The applicant sought review of a decision concerning a Visitor (Class FA) visa, Subclass 600. The dispute arose because the applicant acknowledged that the person they intended to visit in Australia was neither an Australian citizen nor a permanent resident. Furthermore, the application for review was not made by a relevant person who is an Australian citizen or permanent resident, and the prescribed fee had not been paid, nor had any request been made for a fee reduction. The decision was made by David McCulloch, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to review the visa decision. This involved determining whether the applicant met the criteria for standing to seek review, specifically concerning the residency status of the person to be visited in Australia and the status of the applicant themselves in relation to making the review application. A secondary issue concerned the payment of the prescribed fee for the review application.

The Tribunal reasoned that jurisdiction was absent on multiple grounds. Firstly, the applicant's own admission that the intended visitor was not an Australian citizen or permanent resident meant that a key jurisdictional prerequisite was not met. Secondly, the Tribunal found that the applicant was not a "relevant person" as defined for the purposes of review, implying a requirement for the applicant to be an Australian citizen or permanent resident. Finally, the non-payment of the prescribed fee, without any request for a reduction, rendered the application invalid and deprived the Tribunal of jurisdiction.

Consequently, the Tribunal concluded that it did not have jurisdiction to hear the application for review.

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 applicant has acknowledged that the person that she intended to visit in Australia was not an Australian citizen or permanent resident. Thus there is no jurisdiction for the review on this basis. There is also no jurisdiction on the basis of the review not being having been made by a relevant person who is an Australian citizen or permanent resident. Further, 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.David McCullochMember

Ratio Decidendi

Legal Principle Established

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