Biunno (Migration)

[2019] AATA 738

Biunno (Migration) [2019] AATA 738 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Michele Biunno

CASE NUMBER:  1904016

DIBP REFERENCE(S):  BCC2018/5213550

MEMBER:Nora Lamont

DATE:8 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 08 April 2019 at 7:50am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – request for fee reduction refused –payment received after specified period expired – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 347
Migration Regulations 1994, Schedule 2, 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 Immigration, dated 1 February 2019, to refuse to grant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged with the Tribunal on 21 February 2019. 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 r.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 r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 22 February 2019. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. Before the prescribed period expired, the applicant asked the Tribunal to reduce the prescribed application fee. An authorised officer decided to refuse the request and the applicant was advised of this decision by letter dated 14 March 2019. The applicant was asked to pay the application fee within 14 days of receiving the Tribunal’s letter. The Tribunal received payment of the fee on 29 March 2019 after the specified period expired, and after the prescribed period had expired. The Tribunal considers the applicant was given a reasonable period to pay the fee since being notified of the authorised officer’s decision; however the fee was not paid within that time. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Nora Lamont
   Member