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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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

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

   David McCulloch
   Member